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China Ana Muthuvayyangar Vs. Thiruvangadammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1942Mad395; (1942)1MLJ285
AppellantChina Ana Muthuvayyangar
RespondentThiruvangadammal and ors.
Cases ReferredIn Krishna Rao v. Sundara Siva Rao
Excerpt:
- .....law that there should be a giving and a taking had been fulfilled during the life time of the adoptive father. it is common ground that the datta homan ceremony was performed by srinivasa aiyangar's widow, the first respondent, on the 10th march, 1937, that is twelve days, after the death of her husband. in these circumstances the subordinate judge considered that the second respondent had been lawfully adopted to srinivasa aiyangar. he also held that the deceased had given his widow oral authority to adopt and further that the authority could be implied from the surrounding circumstances. the widow claimed that she had received authority under a will executed by her husband, but the subordinate judge refused to accept the document as being a valid will.2. on behalf of the appellant.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. In this appeal the Court is called upon to decide whether the second respondent is the adopted son of one G. Srinivasa Aiyangar, who died on the 27th February, 1937. The suit was brought by the appellant as the nearest reversioner to the deceased's estate for a declaration that the second respondent had no interest therein, in other words that he had not been adopted to Srinivasa Aiyangar. The Subordinate Judge held that during the life time of Srinivasa Aiyangar the natural father of the second respondent had agreed to give his son to him in adoption and that Srinivasa Aiyangar took the boy with that intention. Therefore the condition imposed by Hindu law that there should be a giving and a taking had been fulfilled during the life time of the adoptive father. It is common ground that the datta homan ceremony was performed by Srinivasa Aiyangar's widow, the first respondent, on the 10th March, 1937, that is twelve days, after the death of her husband. In these circumstances the Subordinate Judge considered that the second respondent had been lawfully adopted to Srinivasa Aiyangar. He also held that the deceased had given his widow oral authority to adopt and further that the authority could be implied from the surrounding circumstances. The widow claimed that she had received authority under a will executed by her husband, but the Subordinate Judge refused to accept the document as being a valid will.

2. On behalf of the appellant it has been conceded that if there was a giving and a taking of the boy during the life time of Srinivasa Aiyangar his widow would have the right of completing the adoption by the performance of the datta homam ceremony after his death. That this is so is to be gathered from the decision of this Court in Seetharamamma v. Surayanarayana : AIR1926Mad1184 .

3. It is common ground that the boy left the house of his natural father six years before Srinivasa Aiyangar's death, and that during the whole of this period he lived with Srinivasa Aiyangar and his wife who treated him as a son in every respect. Learned Counsel for the appellant accepts it as being true that Srinivasa Aiyangar throughout had the intention of adopting the second respondent and that the reason 'why the adoption, ceremony was postponed was that he desired it to take place when the boy was of more mature age and therefore not so likely to fall into pollution. There is evidence that Srinivasa Aiyangar intended the adoption to take place after the expiry of the year Dhatu which came to an end in April, 1937. All are agreed that the year Dhatu is looked upon as an unfortunate period because in that year of the last cycle there was a terrible famine in this Province. It may be taken that it was the intention of Srinivasa Aiyangar to perform the datta homam ceremony after the year Dhatu had expired. Death prevented-him carrying out his intention.

4. The evidence of what transpired when the second respondent was taken into Srinivasa Aiyangar's household consists of the testimony of the widow and of his natural father. In the course of her evidence the widow said:

My husband and myself went and brought Barnaul to our house when he was five years old in order to adopt him so as to perpetuate our lineage. We asked Pichu Aiyangar that he should give Raman to us so that we might have him as our son. Then we got his tonsure ceremony performed at our cost in the Vettaii Venkatesa Perumal Sanniadhi and also gave him Aksharabyasain.

The natural father stated that Srinivasa Aiyangar told him and the boy's mother that he was going to adopt the boy and he asked for their permission to do so. The witness was not actually asked whether he gave his consent but there can be no doubt that he did, because Srinivasa Aiyangar and his wife took the boy away with them there and then and thereafter brought him up. In these circumstances it cannot be doubted that Srinivasa Aiyangar asked the natural father to give the boy to him in adoption, that the father consented and that he handed over the boy to him to be taken in adoption.

5. Mr. Sesha Aiyangar, on behalf of the appellant, says that this is not sufficient. According to him there must be a formal ceremony and the words mentioned by Baudhayana uttered. The passage from Baudhayana relied on is reproduced in Mayne, (Hindu Law and Usage), tenth edition, page 251, and reads as follows:

One should go to the giver of the child, and ask him, saying 'Give me thy son'. The other answers 'I give him'. He receives him with these words, 'I take thee for the fulfilment of my religious duties. I take thee to continue the line of my ancestors.

It is said that unless these words or words very similar are actually used there can be no giving and taking within the meaning of the Hindu law. In this connection Mr. Sesha Aiyangar has referred us to Shoshinath Ghose v. Krishnasunderi Dasi , Kuppuswami Reddi v. Venkatalakshmi Ammal (1915) 18 M.L.T. 434, Govindayyar v. Dorasami I.L.R. (1887) Mad. 5 and Krishna Rao v. Sundara Siva Rao (1931) 61 M.L.J. 91 : L.R. 58 IndAp 148 : I.L.R. Mad. 440, but none of these cases goes to the length which he asks the Court to go.

6. In Shoshinath Ghose v. Krishnasunderi Dasi the Privy Council had to consider whether there was a valid adoption when there had been no actual giving and taking of the boy but the mere exchange of deeds of gift and acceptance. Their Lordships held that this was not sufficient. The judgment concludes with this statement:

It would seem, therefore, that, according to Hindu usage, which the Courts should accept as governing the law, the giving and taking in adoption ought to take place by the father handing over the child to the adoptive mother, and the adoptive mother declaring that she accepts the child in adoption.

In making these observations the Board was considering whether the exchange of the deeds was sufficient and they were of the opinion that it was not. They were not laying down the proposition that the utterance of these words used by Baudhayana was necessary. They were indicating that the essentials for a valid adoption were the handing over of the boy by his father for this purpose and the acceptance by the adoptive parent. 'Whether there has been a giving and a taking are questions of fact which can be proved by evidence of what is said and what happens on the occasion.

7. Kuppuswami Reddy v. Venkatalakshimi Ammal (1915) 18 M.L.T. 434, emphasised the necessity of corporeal delivery and acceptance of the child. In Govindayyar v. Dorasami I.L.R. (1887) Mad. 5, the question was whether the ceremony of datta homam was essential to a valid adoption among Brahmans in Southern India when the adoptive father and the son belonged to the same gotra, and it was held that it wag not. The decision in Shoshinath Ghose v. Krishnasunderi Dasi , was considered but the judgment of the Full Bench does not indicate a different interpretation of the judgment of the Judicial Committee from that which we place upon it. In Krishna Rao v. Sundara Siva Rao (1931) 61 M.L.J. 91 : L.R. 58 IndAp 148 : I.L.R. Mad. 440, a mere declaration by the adoptive father to the effect that he had adopted a son was held not to be sufficient because there had been no evidence of the giving and taking.

8. We hold that the Hindu law does not require that there shall be a formal ceremony when the boy is given and accepted. For a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his son in adoption, that the boy shall be handed over and taken for this purpose and that the adoption ceremony shall be performed when the parties belong to the twice-born class. As we have already indicated, in our opinion the evidence here proves beyond doubt that there was a giving and a taking of the second respondent in the life time of Srinivasa Aiyangar. This being so and it being accepted that the datta homam ceremony could be lawfully per-formed by the widow after her husband's death, we concur in the decision of the Subordinate Judge that the second respondent is the lawfully adopted son of Srinivasa Aiyangar, In these circumstances it is not necessary for us to consider whether the will is genuine or whether the widow had oral or implied authority to adopt.

9. The appeal fails and will be dismissed with costs, one set.


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