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Mandava Kotial and ors. Vs. Mandava Sitaramayya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 270 of 1955
Judge
Reported inAIR1960AP578
ActsHindu Law; Majority Act - Sections 2
AppellantMandava Kotial and ors.
RespondentMandava Sitaramayya and ors.
Appellant AdvocateA. Kuppuswamy and ;T. Ramachandrarao, Advs.
Respondent AdvocateA. Raghaviah and ;P.P. Surya Rao, Advs.
DispositionPartly allowed
Excerpt:
family - adoption - hindu law and section 2 of majority act - widow of seventeen years adopted plaintiff amidst ceremonies performed - plaintiff wanted defendants to give possession of properties that fell into his possession - certain properties sold - suit instituted by defendants claiming adoption as invalid - adoption of child by widow should be by consent of the nearest agnatic relation to her husband - even though widow not attained majority according to majority act but is a major according to hindu law - she's capable of making adoption by virtue of section 2 of majority act but is not competent to make disposition of property - present adoption held valid. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5:.....chandra reddy, c. j.1. this appeal is brought by defendants 1 to 4 against the judgment of the subordinate judge of narsaraopet decreeing substantially o. s. no. 48 of 1.952, subsequent to the filing of the appeal, defendants 5, 11 and 20, the alienees from the original appellants, got themselves impleaded as respondents.2. the action giving rise to this appeal was laid in forma pauperis by one seetharamaiah as the adopted son of mandava venkarrayudu, a divided brother of the first defendant and the father o defendants 3 and 4, for possession of items 1 and 3 to 7 of the plaint b schedule, and items 1 to 6 and 8 of the c schedule, for partition of item 7 of the c schedule into two equal shares and for possession of one such share, for partition of the d schedule properties into three.....
Judgment:

Chandra Reddy, C. J.

1. This appeal is brought by defendants 1 to 4 against the judgment of the Subordinate Judge of Narsaraopet decreeing substantially O. S. No. 48 of 1.952, Subsequent to the filing of the appeal, defendants 5, 11 and 20, the alienees from the original appellants, got themselves impleaded as respondents.

2. The action giving rise to this appeal was laid in forma pauperis by one Seetharamaiah as the adopted son of Mandava Venkarrayudu, a divided brother of the first defendant and the father o defendants 3 and 4, for possession of items 1 and 3 to 7 of the plaint B schedule, and items 1 to 6 and 8 of the C schedule, for partition of item 7 of the C schedule into two equal shares and for possession of one such share, for partition of the D schedule properties into three equal shares and for possession of one such share and for a permanent injunction restraining defendants 1 to 4 from trespassing on items 2 and 8 of the B schedule properties.

As regards items 1 to 5 of the C schedule, an alternative prayer was made that they may be divided into three equal shares and one share allotted to him, if the Court should believe that the sale of these items by his adoptive father was for the benefit of the family constituted by the vendor and the two vendees.

3. The facts that are helpful for appreciating the contentions of the respective parties may be briefly narrated. One Mandava Kotaiah had tour sons, Venkaiah, Lingayya, Ramaswami and Lakshmiah. We are here concerned only with the descendants of Ramaswami and Lakshmaiah. Ramaswami had three sons, Seshaiah, Kotaiah (first defendant) and Venkatrayudu, Seshayya being the eldest. After the death of their father, the eldest brother became the manager of the family. Seshaiah's sons are Venkateswarlu and Subbarao, defendants 3 and 4 respectively, while the second defendant is the son of the first defendant. Lakshmaiah had two sons, Kotaiah and Appaiah. They had a maternal uncle by name Amirineni Veerayya of Vinjanampad, who had only daughters but no sons.

Under a will executed by him in 1912, this Veerayya made a bequest of a part of his property to Venkatrayudu. There was litigation concerning this property which ultimately ended in a compromise by and under which items 1 to 4 of the C schedule and a share in item 5 were got by Venkatarayudu, who made a sale of these properties in favour of Seshayya, the manager of the joint family under Ex. B-15 in 1917. The three brothers continued to be joint till 1925 when the family was disrupted and the family properties were divided by metes and bounds and the properties in the B schedule were allotted to Venkatarayudu. Venkatarayudu died in the year 1927, leaving behind him his widow, Punnamma alias Rukminiamma, who was 17 years old. Shortly after the death of Venkatarayudu, his widow shifted to the abode of her parents in a neighbouring village.

4. In 1949 she conceived the idea of adopting a boy to her husband with a view to perpetuate the lineage, and to obtain salvation for her and her hushand. So, she approached the first defendant for his assent to adopt a boy by name Sitaramiah, who was a gnati of theirs. The first defendant declined to accord his consent to this adoption alleging that the entire property of her husband was surrendered by Punnamma in favour of himself and his elder brother, Seshaiah, in consideration of which Ac.2-90 cents of land was given to her for her maintenance, that pursuant to this arrangement they had been enjoying the property since then and therefore she was not entitled to make an adoption, that the motive that operated on her mind was the deprivation of the rights of the reversioners and that if she was anxious to make an adoption she could adopt the second son of his elder brother, since the boy proposed by her was not suitable being 22 years of age, illiterate and 'without rudiments of education'. The suggestions contained in this notice were repudiated tin a rejoinder by Punnamma, who also denied having surrendered her estate in favour of the reversioners.

5. She then made the same request to the two sons of Lakshmiah, viz., Kotaiah and Appaiah. The first of them refused to accede to her wish by his reply dated 22-2-1950. This is couched practically in the same language as that of the first defendant but in a shorter form. But the other relation Appaiah, gave his written assent. The terms of this document (Ex. A-2) are as follows:

'Your husband late Venkatrayudu is the son of my senior paternal uncle. Your husband had no male or female issues. Your husband died without giving permission to you for making an adoption. For perpetuation of the family line, for the temporal and spiritual benefit of yourself and your hushand you have requested me to give my permission for (taking a hoy in) adoption. As you wanted to take in adoption Seetharamayya son of Mandava Ramayya Garu, who is our close gnati, I, being a close gnati, agreed there to have given permission for the adoption and executed and delivered a consent deed...'

6. Shortly after this, Punnamma adopted Sita-ramayya, the plaintiff in this action, and this is evidenced by Ex. A-1 dated 26-2-1950. It was inter alia recited therein that the ceremony of adoption including the giving and taking was performed in the presence of relatives, friends and purohits and other elders.

7. Thereafter, the plaintiff required the defendants to give him possession of the properties that fell to the share of his adoptive father and to divide such of the properties as were kept joint into two or three equal shares as the case may be and put him in possession of his share. As this demand was not complied with, he was obliged to institute the present suit. To this suit was impleaded the persons who had purchased the various items of properties which either belonged to the plaintiff exclusively or in which the plaintiff had joint interest along with defendants 1 to 4. The plaintiff impugned the validity of lie sale deed regarding the C schedule properties as being a nominal one and without consideration and was never intended to be operative.

8. This suit was resisted on various objections, namely, that the adoption was invalid for the reasons that there was no giving and taking that the consent of the nearest sapindas of her hushand was not obtained, that the assent of Appaiah was not proper as he had not applied his mind to it, that no attempt was made to . get the assent of the third defendant and that, lastly, it was not com- ' petent for the widow to make the adoption, as she had already surrendered her estate in favour' of the nearest reversioners. The defendants contested the claim of the plaintiff to items 1 to 5 on the plea that the document was not nominal as it was sold in lieu of their discharging the debts binding on the vendor, that it wag meant to be operative and that it was fully acted upon.

9. Over-ruling the opposition, the SubordinateJudge entered judgment for the plaintiff directingpossession of stems 1 and 3 to 7 of the plaint Bschedule as also items 6 and 8 of the plaint C,schedule, a division of items 1 to 5 of the C scheduleproperties into three equal portions by metes and.hounds and giving possession to the plaintiff ofone such portion and a division of item 7 of Cschedule into two equal shares and giving possession to the plaintiff of one such share. An injunction was also issued restraining defendants 1 to 4from interfering with the possession and enjoyment of item 2 of the plaint B schedule.

The trial Court found the issue regarding the validity of adoption in favour of the plaintiff in the , opinion that the giving and taking took place, that the refusal of the first defendant and Kotiah was improper, that the consent of Appaiah was sufficient for a valid adoption and that the third defendant's consent was unnecessary, as he was only a minor at tile time of adoption. On the controversy bearing on surrender, the Subordinate Judge held against the defendants in the view that there was no surrender at all and that even otherwise, it would be invalid since the widow was a minor at that time.

As regards the transaction evidenced by Ex. B-15, the trial Court found that the transaction was a genuine one meant for the benefit of the whole family, that the three branches were entitled to this property in three equal moities and that the latter had no exclusive title to these properties. The judgment dealing with this issue has become final as that has not been brought into question.

10. Defendants 1 to 4, who are aggrieved by this judgment have preferred this appeal, while the plaintiff filed a memorandum of cross-objections against the judgment refusing to grant any relief in regard to the house, item 8 of the C schedule.

11. The conclusions of the Subordinate Judge are impugned by the learned counsel for the appellants on various grounds. It was faintly urged that the finding of the Subordinate Judge regarding the giving and taking is not borne out by the material on record. We think that this argument is inadmissible. The photograph, which was properly proved, as also the recitals in the deed of adoption, Ex. A-l, conclusively establish the factum of adoption with all the necessary Ceremonies. It was stated, in the document that the boy was taken by the widow as her adopted son on being given away to 'her by his parents as the adopted son of her husband'. The photograph also supports this recital. There is no reason why the parties should have failed to observe the ceremony, especially when they were conscious of the necessity for it as revealed by Ex. A-I and the performance of it did not present any difficulty, or why they should take a photograph of the ceremony making a rehearsal of it after the function was over.

12. The case of the plaintiff is supported by P. Ws. 1 and 2. Reliance is placed on certain discrepancies in the evidence of these two witnesses, but they are not of material character and are attributable only to lapse of memory. Besides Ex. A-l and the photograph and the depositions of these two witnesses, the case of the plaintiff agrees with probabilities. That being so, we are unable- to disagree with the finding of the Subordinate Judge in that behalf. It. may be mentioned in passing that the finding of the Subordinate Judge on this issue is not seriously challenged.

13. The next and more important question is whether the refusal of the first defendant to assent to the adoption has invalidated it and whether the consent of Appaiah has supplied the deficiency. The stand taken by the appellants in this behalf is that the refusal of the first defendant to agree to the adoption of the present plaintiff was quite proper in that it was well within his rights to insist upon a nephew of his being adopted instead of a stranger. According to the learned Counsel, a saplnda could propose the adoption of his son or nephew and could refuse, to consent to the widow adopting a distant relation. The foundation for this proposition is the observations of Bashyam Ayyangar J., in Subrahmanyam v. Venkamma, ILR 26 Mad. 627.

14. In that case, a widow obtained the assentof only one of the sapindas to an adoption representing that the had authority of her husband butdid not apply for such authority to another sapindaof equal degree. It was found that the representation regarding the oral authority conferred On herby her husband was not true and an assent given^ on the faith of that representation was inefficacious and that the failure to seek the consent ofthe other kinsman had invalidated the adoption.The failure of the widow to prove her husband'sconsent 'entered deeply' into that case. There,the assent of the other sapinda was not evenapplied for; he was completely ignored, and was notgiven an. opportunity to advise her, It was held. that the apprehension: that he might refuse toaccede to the request was not a ground for refraining from consulting him.

15. The learned Judges were not called upon to decide the effect of the assent of a sapinda hedged in with the condition that his son or a near relation of his should be adopted. Yet, the learned Judges said:

'There is nothing improper in a sapinda proposing to give his assent to a widow adopting his own son, if such sapinda be the nearest sapinda, and refusing to give his assent to her adopting a stranger or a distant sapinda, if there be no reasonable objection to the adoption of his own son.'

It was unnecessary for the learned Judges to 'go into this hypothetical question and, therefore, these observations are merely obiter. It is true that this decision was affirmed by the Privy Council in Venkamma v. Subramaniam, ILR 30 Mad 50. But their Lordships of the Privy Council did not say anything which would indicate their approval of this rule.

16. This dictum was dissented from in thesubsequent decisions of the Madras High Courtand it is opposed to a long current of judicialopinion. .. -

17. The principle that is deducible from all these rulings, some of which will be referred to presently, and with which we express our respectful accord, is that a sapinda, whose consent is sought has to consider the expediency of the proposed adoption after forming an independent and unbiased judgment on that question and that he could not insist that his son or another boy in whom he is interested should be adopted. It emerges from these decisions that the assent ot the nearest agnatic relations was required to ensure, that, the widow made the adoption in the bona fide performance of the religious duty and not either out of caprice or of corrupt motives or that it was not intended to defeat the interests of this or that sapinda 'but upon a fair consideration by what may be called the family 'Council, of the expediency of substituting an heir by adoption to the deceased husband''. and that because of the presumed incapacity of a widow of independent action in such matters.

The widow should obtain the mind of her kinsmen on this family question as they are supposed to be her natural advisers and venerable protectors before she decides to make an adoption. The sapindas occupy a fiduciary capacity in relation to her in that regard. Consequently, they should form an intelligent and honest judgment on the matter and Should exercise' discretion for the end designed and not for preserving the property for themselves.

18. It is argued by Sri Kuppuswamy thatthe doctrine embodied in the passage extractedabove in ILR 26 Mad 627 found favour with aBench of the Madras High Court consisting ofPatanjali Sastri and Bell, JJ., in A. S. Nos. 96 and256 of 1944 (unreported). That decision is notplaced before us and we do not know the exactscope of the enquiry before the learned Judges.However, this case was referred to in some otthe decided cases and the facts as culled out fromthem are as follows:

A Hindu widow asked for the consent of two undivided brothers of her deceased husband. In reply, they desired that she should meet them for the purpose ot discussing: that matter Pursuant to this, they had a meeting at which it was suggested by the kinsmen that each of them had sons and she could adopt any one of them- The widow was not agreeable to that course. Subsequently also, the co-parceners intimated their desire to give one of their boys in adoption so that a stranger might not be brought into the co-parcenary. But the widow had expressed her determination to adopt a particular boy, with the result that the coparceners refused their consent for the proposed adoption.

It was in these circumstances that the learned Judges Held that the adoption was invalid. It may not be out of place to remember that in that case, a stranger was sought to be introduced into the coparcenary and tbe question was' whether the surviving co-parceners could object to it on the ground that there were other eligible boys available in the family and whether the objection could be regarded as improper, and it was answered in the negative.

That decision was based on the particular circumstances of that case and it does not seem to have been laid down as a general proposition that, in all circumstances, the refusal of a sapinda, to give his assent to the adoption because a widow would not agree to accept the boy of his own choice in adoption, would be proper.

19-20. It has been held in a number of cases that a refusal on similar grounds was improper and the widow could ignore it and obtain the assent of the other kinsmen. As pointed out in Mayne's Hindu Law (10 Edn.) at pp. 221, 222, it is difficult to conceive of a case in which the refusal of a sapinda could be justified. This is how the principle is stated by the learned author:

'The practical result of the authorities therefore appears to be that a sapinda's refusal to an adoption can seldom be justified.'

In similar terms is the rule stated by Rajamannar, C. J., who delivered the opinion of the Bench in Venkatrayudu v. Seshamma, AIR 1949 Mad 745:

'It may be that in a case where the sapinda refused his consent to the adoption of a boy on the ground that the boy was disqualified or on the ground of leprosy or idiocy, the refusal would he proper.'

In that case an adoption by a Hindu widow was challenged on two grounds, one of which was that the nearest presumptive reversioners had refused their consent on the ground that tbe boy proposed to be adopted was not a sannihitha sapinda, sagotra or gnati. The point that called for decision was whether such a refusal was proper. It was decided by the Bench that the refusal was improper and could be ignored by the widow. It is in dealing with that problem that the remarks extracted above were made. They were not inclined to subscribe to the proposition enunciated by Bashyam Ayyangar J., in ILR 26 Mad 627.

21. This principle is also illustrated by Sundara Rama Rao v. Satyanarayanamurthi, 0043/1950 : AIR1950Mad74 , which contains an elaborate discussion on this topic. The main controversy centered round the question whether the refusal to assent to the adoption by an undivided co-parcener of her deceased husband was justifiable or not. The reasons for the refusal were that the boy sought to be adopted belonged to a family in which there was leprosy, that he in fact was also suffering from leprosy, that he came from the enemy's camp and that the plaintiff was prepared to give his own.son in adoption. The first two grounds could not be substantiated and so could not be pressed and the propriety of the third ground alone fell to be considered by the learned Judges. There, the plaintiff had only one, son at the time of the adoption and the widow pointed out that it would not be proper to adopt an only son. It was ruled there that the refusal was not proper and could therefore be disregarded. Here again, the learned Judges expressed disagreement with the observations of Bashyan) Ayyengar J., in ILR 26 Mad 627 and distinguished the imreported judgment in A. S. Nos. 96 and 256 of 1944 (Mad) on the ground that it was based on( the peculiar facts of that case.

22. Chandrasekhara v. Kodandai Veiu, AIR 1956 Mad 370. furnishes another instance of this doctrine. There also this topic was discussed at great length with reference to the case law. In that case, a Hindu widow addressed letters to her nearest kinsmen seeking their permission to adopt a particular hoy. All except one declined to give the assent, the main reason being that the boy chosen for adoption was not eligible being 20 years old and not an agnatic relation of her husband and that there were eligible boys available in the family amongst the grandsons of the widow's deceased husband, his brothers and his cousins, that the parents of these boys were willing to give any amongst them and that she could choose one of them.

It was held that the dissent of the sapindas was improper and that the consent of one of them in the circumstances was sufficient to uphold the adoption. The learned Judges expressed their disagreement with the opinion of Bashyam Ayyengar J., in ILR 26 Mad 627. It was also laid down there, that a widow should make a bona fide attempt to get the consent of her husband's sapindas to tbe adoption in the absence of authority from her husband and that, if a sapinda refused his consent without exercising an honest judgment, such a refusal could be disregarded.

The learned Judges also opined that the question whether the refusal of a kinsman in a given case is justifiable or not has to be decided on a consideration of the facts of that case. A dissent born out of selfish interest could not be regarded as a proper one. We think that the law as laid down is correct and we are in respectful agreement V with it. It is needless to refer to the other cases cited before us as all of them embody the same principle.

23. Danakoti Ammal v. Balasundara Mudaliar ILR 36 Mad 19, does not carry the appellant anywhere since that was a case of a consent given in exchange for valuable consideration. A purchased consent is no consent at all and wilt certainly vitiate the adoption.

24. Nor does Gopalaswami v. Siddammal, AIR 1958 Mad 488, render any help to the appellant That was a case similar to ILR 26 Mad 627. Here the consent of the sapindas was procured on the footing that the husband had given his permission. Such a consent was not regarded as a consent given on an exercise of his own discretion.

25. If we scan the reasons for the 1st defendant or Kotayya declining permission to the widow to adopt the plaintiff, in the light of the rules slated above, It would become manifest that the refusal was the outcome of a selfish desire not to forego the reversion. It is apparent that he was anxious that the property should not pass out of his family. Such a consideration is a sordid one. As pointed out by their Lordships of the Privy Council in Collector of Madura v. Mutu Ramalinga Sethupathi, 12 Moo Ind App 397 (PC), the assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence lather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption. Therefore, any refusal by a sapinda for an adoption on the ground that either his son or a descendant of his or any near relation of his is available could not be justified as the question has to be approached from an unbiased standpoint and the sapindas are expected to exercise an honest discretion when their assent is applied for. A refusal not based on proper grounds could be disregarded by a widow. It is true that the adoption of a near sapinda is recommended by the commentators but these are only moral precepts, and they do not affect the validity of an adoption. In the circumstances of this case, we have no hesitation in holding that the widow was justified in ignoring the refusal of both the 1st defendant and Kotayya and proceeding to obtain the consent of Appayya.

26. The attitude of Kotayya could not be ascribed to any independent thinking. It is to be remembered that the reasons adduced in support of the refusal were more or less the same as those in the reply of the 1st defendant. It could not also be forgotten that Kotayya and the 1st defendant bad married sisters and that at that time the former was bed-ridden and was not in a fit condition to exercise an independent and unbiased judgment. Ex. A-7 indicates that he was not in a position to sign the letter and was therefore, affixing his thumb mark.

It is further evident from the oral evidence adduced for the plaintiff that he (Kotayya) was both mentally and physically weak and that he was not in a fit condition to understand what he was doing. In these circumstances, we think that the suggestion put forward on behalf of the plaintiff that the reply sent by Kotayya was got drafted by the 1st defendant is not 'without force. Consequently, this refusal should be treated in the same manner as that of the 1st defendant as it is of the same character.

27. This leads us to the question whether the adoption has gained validity from the assent of Appayya. The efficacy of this consent is sought to be whittled down on the ground that Appayya bad not given it after deliberation and that he did it merely to oblige the widow without considering the expediency of such an adoption. It is said that the assent was not the result of the exercise of any independent and honest judgment. This argument is founded on the following statement of Appayya as P. W. 3 in his cross-examination:

'As soon as she asked me for my consent, I really gave it. I did not take any time to think whether it was a desirable adoption or not, I did not contemplate to enquire whether it was desirable adoption or not. I considered that she must have thought over it and sought my consent. I did not try to poke my nose as I thought that if I stated anything not palatable to her she would be offended. I thought that I would leave the whole matter to her discretion.'

This has to be considered along with his answer in re-examination:

'To my mind it appeared to be a proper one. That is why I gave the consent.' Considering the evidence as a whole, the Subordinate Judge thought that it is not possible to conclude that he did not exercise his judgment or the consent given by him was not independent or that he did not act as a counsellor of the family should.'

28-29. We do not find any reason to disagree with the trial Court on this issue. It should be remembered in this context that Appayya had executed a document authorising the widow to adopt. The recitals therein are indicative of his having given thought to the matter before offering his consent. It is evident from the document that he was permitting the adoption as he considered that it was for the perpetuation of the family, for the temporal and spiritual benefit of the widow and her husband and for their salvation and that the boy selected was a close gnati of theirs.

Thus, it may be taken that the assenting party had exercised his honest and unbiased judgment in this matter. The statement that he had not taken much time in giving the consent has no sinister significance for the reason that the boy was known to him for a long time, being a close relation of Appayya, which would adversely affect the consent given by him. We feel that it was sufficient to uphold the validity of the adoption.

30. The next point that calls for determination is whether the omission to consult the 3rd defendant has invalidated the adoption. It is the common case of both parties that the 3rd defendant was a minor at the time of the adoption. The only point, therefore, is whether a minor is capable of giving consent to an adoption. The argument pressed upon us by Sri Kuppuswami is that for the purpose of adoption, the majority of a party has to be determined with reference to Hindu Law, which fixes the age of majority as 16 and not in the context of the Indian Majority Act. For this proposition, reliance is placed on S. 2 of the Indian Majority Act, which provides:

'Nothing herein contained shall affect (a) the capacity of any person to act in the following matters (namely) marriage, dower, divorce and adoption.'

31. Since consent to an adoption falls within the ambit of this section, it was competent to a person who has attained the age of 16 which makes him a major under Hindu Law to give the consent and, therefore, the failure to apply to him for authority is a lacuna in that matter, continues the learned counsel.

32. In support of this proposition, the learned counsel calls in aid Aravamudha Iyengar v. Ramaswami Bhattar, : AIR1952Mad245 . We do not think this case is really to point. That dealt only with the competency of the husband to confer authority on his wife to adopt. The learned Judges upheld the authority given by a husband who had not completed 21 years as required by the Indian Majority Act but who has completed his 16th year as according to Hindu Law ho has attained the age of majority. It was observed by them that there was no particular rule laid down under Hindu Law relating to adoption with reference to the mental capacity required and to the age of majority of the person making the adoption, that ceremonial competency or the qualification to perform a religious rite can never he the test and that it did not carry with it the necessary mental equipment for a person to form an independent judgment in the matter of affiliating a son to himself.

This decision cannot afford any analogy because the consent by a sapinda is expected to be given after forming an intelligent and independent judgment which requires some mental equipment unlike in the case of conferment of authority By the husband. A minor not being sui juris is incapable of forming a judgment. It is well settled that a minor cannot incur any contractual obligations or could dispose of his or her property as the case may be. That being the position, it is difficult to postulate that the consent by a minor is efficacious to validate an adoption and that the absence of it will result in rendering it nugatory.

33. It was remarked by Viscount Cave in Krishnayya v. Lakshmipathi, ILR 43 Mad 650: (AIR 1920 PC 4), that the consent of a near sapinda, who is incapable of forming a judgment on the matter, such as a minor or a lunatic is 'not either sufficient or necessary. It cannot be posited that the Privy Council has used the expression 'minor' as understood under Hindu Law. It should also be remembered that S. 2 of the Indian Majority Act does not make persons, who have attained the age of majority according to Hindu Law, majors under that Act. That only enables them to act in matters of marriage, dower, divorce and adoption, notwithstanding their not answering the description of a major under the Act.

It is contended by Sri Kuppuswami that we should construe it as authorising such persons to perform all or any of the acts bearing on adoption. We do not think that it is possible to give such a wide interpretation as that. That only implies that the capacity to make an adoption is not in any way affected by such a person not having completed the age of 21. By reason of this exception, any disability attaching to a minor within the comprehension of that Act, is removed. Conferring authority on the wife is on the same footing as the husband himself making the adoption. Neither of the two acts involves the forming of an intelligent and independent judgment. But the ' giving of assent stands on a different footing altogether, for the assenting party has got to discharge a particular function, which carries with it the duty of exercising one's mind. In our considered view, a minor has no capacity to accord permission to an adoption. Consequently, the omission to consult him does not in any way affect the validity of the adoption. This contention also, therefore, fails and is rejected.

34-38. We are then left with the problem whether there was a Surrender in favour of the reversion, which stands in the way of legal adoption as pleaded by the contesting defendants. (After discussion of the evidence the judgment proceed:) On a review of the entire evidence and the circumstances of the case, we are inclined to think that the story of surrender was invented to disable the widow to adopt a boy of her choice. We are aba inclined to agree with the trial Court that the arrangement was not voluntarily entered into by the widow and that she had to yeild to them having regard to the then situation. Even if there was a surrender as contended by the defendants, it is not of much avail to them as, undeniably she was a minor at that time.

39. The case of defendants 1 to 4 was that St was a few days after the death of Venkatrayudu i.e., even before the obsequies were completed that the surrender was made. At that time, she was only 17 years old as could be seen from Ex. A-28. We do not think that a minor could validly effect a surrender. During minority, a person is not competent to make a disposition of his property. If that were so, a minor widow could not make a selfeffacement. A contractual disability always attached to a minor. Thus, even if in fact there was a surrender, it could be ineffectual, having regard to the minority of the widow. Consequently, we cannot give effect to this objection of the appellants either. It follows that the appeal must be dismissed with costs.

(The rest of the judgment is not material for this report.)


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