(1) This is an appeal by defendants 2, 3 and 7 in the lower court in a suit by reversioners which was decreed by the grant of a declaration that plaintiffs and defendants 4 to 6 were the nearest reversioners entitled to succeed to the estate of Ponnusami Pillai alias Ramkrishna Pillai, the husband of the first defendant, who died over 40 years ago. The first defendant had executed a settlement deed dated 21-11-1951 (original of Ex. A. 2), and the learned Subordinate Judge of Sivaganga also gave finding that this would not be binding upon the reversioners after the death of the first defendant, in respect of the suit properties, with the exception, in item 16, which is not within the scope of the present appeal. The appeal really resolves itself into one upon the propriety of the finding that the adoption of the 7th defendant by the first defendant was neither true, nor valid in the sense of being supported by the permission of the sapindas. This is the crux of the matter which has been canvassed before me in this appeal.
(2) The facts necessary for an appreciation of the subject-matter of this controversy are simple. The first defendant's late husband Ponnusami alias Ramkarishna Pillai belonged to a Hindu joint family of several brothers, who divided their properties as between themselves. This Ramakrishna Pillai died about 32 years back, leaving only the first defendant by whom he had admittedly no issue. The first defendant then adopted a boy named Lakshmanan, and one of the matters in controversy is whether this boy was adopted during the life-time of Ramkrishna Pillai himself, or after his death by the widow (first defendant) with the authorisation of the sapindas.
This issue should be immediately clarified in order to avoid confusion, for this is not the adoption which is challenged in this suit. This is an earlier adoption which actually came into effect. But, unfortunately, this adopted boy (Lakshmanan) died sometime thereafter, and the present case of the applicants is that the 7th defendant was much later adopted to the first defendant (on 5-12-1951). with the express consent of the sapindas. The earlier adoption would ordinarily not be of much significance; but it becomes relevant in the following manner.
If we assume that this adoption was after the death of Ramakrishna Pillai, it must necessarily have been with the consent of the sapindas, for it was never challenged subsequently by them. The learned Subordinate Judge actually found that the adoption of Lakshmanan took place during the life-time of Ramakrsihna Pillai himself, in which case the question of the sapindas granting any consent would not at all arise. But, it is now pleaded before me that this finding is actually contradictory to averments in an earlier litigation, and the appellants have sought to file a plaint in the previous suit, O. S. No. 4 of 1911, in order to make this clear. I might state in this context that in coming to the view that the earlier adoption took place during the life-time of Ramakrishna Pillai himself, the lower court was largely influenced by Ex. A. 6, a copy of the written statement in that suit, O. S. No. 4 of 1911. A certified copy of the plaint is now filed, in order to make it clear that in the previous suit, it was specifically asserted in the plaint itself that the first adoption was made only after the life-time of Ramakrishna Pillai.
Consequently, both from this document which is now produced, and the specific averments in the present suit, it does appear as if the earlier adoption was made by the first defendant after the death of her husband, and that, by the implication of certain averments in pleadings in the present suit, the adoption could only have been with the consent of the sapindas.
(3) But, even so, we do not have the slightest ground for presumption that the consent was a general consent, permitting the widow to adopt any one whom she liked, or to adopt generally. On the contrary, apart from the fact that there is a lacuna in the evidence on this aspect, the probabilities are far more consistent with the inference that the first defendant was specifically permitted by the reversioners to adopt the boy, Lakshmanan, and that she did so. Of course, the boy died shortly thereafter. But, does this specific consent to the adoption of a particular individual by the sapindas, operate as a general consent enabling the widow to adopt someone else many years later? The point is not covered by any express authority. But my attention has been drawn to the decision of this court in Vasireddi Venkayya v. Gopu Sreeramulu, ILR 1942 Mad 163 : AIR 1941 Mad 935, the following observation occurs in the judgment of the Full bench delivered by Leach C. J.:
'Of course, if the sapindas only give their consent conditional on the widow adopting a named person, that will be a different matter. To ignore such a condition would mean acting beyond the scope of the authority.'
Consequently, if, as it appears to have been the case, the authority was only express and related to Lakshmanan alone, I do not think that it could be contended that the authority would enure for the adoption actually set up on the present case. Apart from this, we have further to see whether there is credible and satisfactory evidence to establsish the factum of the alleged adoption; the burden of proof of which undoubtedly lay upon the appellants.
(4-5) I may here observe that the appellants attempted to prove, not merely the adoption of the seventh defendant by the first defendant, but also the grant of permission by the sapindas to this specific adoption. (After discussion of the evidence His Lordship concluded). In brief, both upon the fact and upon the consent of the sapindas the appellants totally failed to establish their case.
(6) The appeal accordingly fails and is dismissed with costs.
(7) Appeal dismissed.