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Kodukulla Kamayya Bhakta (Deceased) and anr. Vs. Kodukulla China Sooranna and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1934)66MLJ37
AppellantKodukulla Kamayya Bhakta (Deceased) and anr.
RespondentKodukulla China Sooranna and ors.
Cases ReferredViraraghava v. Ramalinga I.L.R.
Excerpt:
- - had the plaintiff put his inability to consent on the ground that he did not know which boy was to be adopted his present complaint may have force in so far as his failure to consent was due to a reasonable cause. no question therefore arises as to the identity of the adoptee in connection with plaintiff's consent and it is sufficient to say that by his answer plaintiff put it entirely beyond his power to complain of the adoption on the ground of want of his own consent......fixed as that in which he was born by the upanayana in it. ex hypothesi the gotra of birth and gotra of adoption are the same and there is no transfer at all. the matter is dealt with by mayne in para. 142 (7th edition). the decision in viraraghava v. ramalinga i.l.r. (1885) 9 mad. 148 contains an express decision to this effect which considered fully all the authorities and also the usage of the tamil districts from which that case arose. but it is wrong on that account to say that that decision applies only to tamil brahmins. it was understood by muthuswami iyer, j., in pichuvayyan v. subbayyan i.l.r. (1889) 13 mad. 128 as applicable to all brahmins of southern india. the authorities considered in viraraghava v. ramalinga i.l.r. (1885) 9 mad. 148 are also authoritative in the.....
Judgment:

Krishnan Pandalai, J.

1. The parties are Velnadi Brahmins of the Andhra country. The 3rd defendant, the widow of one Lakshminarayana Bhakta, adopted the 2nd defendant, the son' of 1st defendant, her husband's first cousin (paternal uncle's son). The plaintiff who is another first cousin (another paternal uncle's son) of her husband brought this suit for a declaration that the adoption was invalid on two grounds (1) that his (plaintiff's) consent to the adoption which was necessary was not given, (2) that the adopted son's Upanayanam had been performed in his father's family and that such adoptions are not valid among Brahmins of this class.

2. The District Munsif decided both points in favour of the plaintiff and gave him a decree. The learned Subordinate Judge decided both points, against the plaintiff and dismissed the suit. The plaintiff appeals.

3. On both points the judgment of the learned Subordinate Judge is clear and complete and I entirely agree with his reasoning. It is therefore not necessary to elaborate the points at length.

4. As to want of plaintiff's consent, it is found that when he was asked for it, his reply was Ex. II, in which he said that he would not give his consent because he had a reversionary interest in the property of the deceased. This, he expanded in his evidence when he said that he did not give his consent because he was the nearest heir and would lose a share. On the authorities this refusal was highly improper based as it was on plaintiff's own selfish interests and not on anything connected with the propriety of the adoption: Ganesa Ratnamaiyar v. Gopala Ratnamaiyar , Venkatarama Raju v. Papamma I.L.R. (1914) 39 Mad. 77 and Krishna Rao v. Raja of Pittapur A.I.R. 1927 Mad. 733. The refusal of consent was therefore rightly disregarded. But it is now objected that in the 3rd defendant's request for consent, the name of the boy to be adopted was not mentioned and dissent on such a request Cannot be treated as an effective dissent. Authorities were referred to show that a general assent of kinsmen to an adoption in the abstract will not do; but there must be assent to the adoption of a particular person. These authorities are beside the point. Had the plaintiff put his inability to consent on the ground that he did not know which boy was to be adopted his present complaint may have force in so far as his failure to consent was due to a reasonable cause. But by his actual answer he disclosed that his dissent was not based on any considerations of the adoptee's unsuitability but due to his own unwillingness to forego his reversionary interest. No question therefore arises as to the identity of the adoptee in connection with plaintiff's consent and it is sufficient to say that by his answer plaintiff put it entirely beyond his power to complain of the adoption on the ground of want of his own consent.

5. The second point is that whatever may be the law as to other Brahmins, it is illegal among Brahmins of the Andhra country to adopt a boy after his Upanayanam even though he is of the same gotram. Even the District Munsif who upheld this view found as a fact that there was no proof of local usage to support it if it had to be established as a variation from the general law of this Presidency. There is no proof of any usage in the Andhra country invalidating adoption of a boy of the same gotram on the ground that Upnayanam had been performed in the family of his birth. Therefore the law in this respect relating to Velnadi Brahmins must be taken to be the same as that which prevails among other Brahmins. So far as this is concerned it has been authoritatively declared several decades ago that where the adopter and adoptee are of the same gotra the performance of the Upanayana of the adoptee is no bar to the adoption; for in such a case there is no impediment to the adoption arising from the impossibility of transferring a boy to the gotra of the adopter after his gotra had been fixed as that in which he was born by the Upanayana in it. Ex hypothesi the gotra of birth and gotra of adoption are the same and there is no transfer at all. The matter is dealt with by Mayne in para. 142 (7th Edition). The decision in Viraraghava v. Ramalinga I.L.R. (1885) 9 Mad. 148 contains an express decision to this effect which considered fully all the authorities and also the usage of the Tamil Districts from which that case arose. But it is wrong on that account to say that that decision applies only to Tamil Brahmins. It was understood by Muthuswami Iyer, J., in Pichuvayyan v. Subbayyan I.L.R. (1889) 13 Mad. 128 as applicable to all Brahmins of Southern India. The authorities considered in Viraraghava v. Ramalinga I.L.R. (1885) 9 Mad. 148 are also authoritative in the Telugu country and one of the cases cited, Prayaga Venkana v. Lachsmi (1809) 2 S H Law 102, appears from the names to have come from the Telugu country. The Pandit's reply in that case was that according to the Dattaka Mimamsa the sons of brothers invested with the sacrificial thread might be adopted and Mr. Ellis observed that the more correct, because the more reasonable, opinion appeared to be that a person on whom Upanayanam had been performed was eligible if of the same gotra, ineligible if of a different gotra from the adopter. I agree with the Lower Court that reading the decision in Viraraghava v. Ramalinga I.L.R. (1885) 9 Mad. 148 as a whole, the authority of that decision cannot be confined to the Tamil Districts either because it arose therefrom or on the ground that it was based on any usage peculiar to them. In the absence of anything to show that the custom of the Brahmins, of. the Andhra Districts is at variance with that decision it must be held to apply to these parties and, if so, the second objection also fails.

6. The appeal is dismissed with costs.


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