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Chavakula Ammanna Vs. Chavakula Satyanarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1926Mad916; (1926)51MLJ426
AppellantChavakula Ammanna
RespondentChavakula Satyanarayana and ors.
Cases Referred and Dattatraya Bhimrao v. Gangabhai I.L.R.
Excerpt:
.....where the settlor after the transfer can clearly not be regarded as the last male holder, i therefore think the appeal fails on both grounds and i would dismiss it with costs. i may here state that although the adoption in the present case was made 19 years after the date of authority, it was admitted in the plaint (paragraph 6) and conceded before us that, had the donor of the authority been alive on the date of adoption, the adoption would have been perfectly valid. 620. i may here state that the authority in the present case was not to adopt any boy, but to adopt a boy 'from among the sons of your brother, or the sons of my brothers, or their daughters' sons or their sons';and that the boy adopted satisfied this description. 19. and it concludes by saying- you shall enjoy the..........judges who held so, that the consent of the nearest sapinda would be sufficient, even if at the time of adoption that sapinda is no longer living and the person who is the nearest sapinda at the time does not consent to the adoption. it must, we think, be conceded that, if a sapinda who has given his consent withdraws it, afterwards the widow would not be entitled to act upon such consent, and it seems to us to be unreasonable to hold that a consent once given should become irrevocable by the death of the sapinda giving the consent so as to override the opinion of the sapinda who subsequently became entitled to be heard. but it is contended that, if the authority is acted upon within a reasonable time, that ought to be sufficient to obviate the necessity of obtaining the consent of.....
Judgment:

Odgers, J.

1. This was a suit by a reversioner during the life-time of a widow for a declaration that an adoption alleged to have been made by the latter is not valid and binding on the reversioners. The District Munsif held that the objection raised by the plaintiff to the validity of the adoption failed, which view was upheld by the Subordinate Judge. A certain person called Somanna executed on the 26th April, 1891 Ex. I which is a document in favour of one Danalakshmi, his daughter-in-law, whereby he gave her certain property the effect of which will be discussed later and a power or consent to her to adopt. The words are:

As you asked me for my consent in order to adopt a boy for the prospering of our family, I have given my consent, so that you may adopt at your pleasure, whomsoever you may like, whenever it is necessary, from among the sons of your brother, or the sons of my brothers, or their daughters' sons or their sons' sons.

2. Somanna died on the 28th August, 1891 without having revoked this authority and, on the 10th June, 1910 or nearly 19 years after, the adoption in question was made by Dhana-lakshmi.

3. The first point taken by Mr. P.R. Ganapathi Aiyar is that, as the father-in-law is merely a sapinda, his consent must come to an end with his death. It is only, says the learned vakil, in the case of the husband's authority that it extends beyond his death. Somanna had three brothers, Subbanna, Lingappa and Thirapayappa. The son of Lingappa called Ammanna is the plaintiff and another of his sons called Suriah is the 2nd defendant. One of the sons of Thirapayappa is Moolaya alias Moolaswami of whom we shall hear more find the other son is Chinna Venkataramiah. Somanna had a son Ramayya, who had predeceased him and who married Dhanalakshmi, the adoptive mother in the present case.

4. It is of course well settled in this Presidency since its recognition in the Ramnad case, Collector of Madura v. Moot-too Ramalinga Sethupathi (1868) 12 M.L.A. 397 [see also the case in Sri Virada Pratapa Raghnnada Deo v. Sri Brozo Kishoro Patta Deo I.L.R. (1876) M. 69 which approved it] that a widow may adopt if duly authorised by her husband's kindred. This has been amplified and explained in various later cases. See Kristnayya v. Lakshmipathi (1920) 39 M.L.J. 70 where it is said that the adoption must be made not from capricious or corrupt motives but on a fair consideration by what may be called a family council of the expediency of substituting an heir by adoption to the deceased husband. This case has been referred to a Bench by a learned Judge of this Court on account of the opinions expressed in Mami v. Subbarayar (1911) 24 M.L.J. 484 and Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87. Referring to Subramanyam v. Venhamma : (1903)13MLJ239 which held that the principle of the decisions of the Privy Council would be satisfied if the consent of the nearest sapinda was obtained, the learned Judges in Mami v. Subbarayar (1911) 24 M.L.J. 484 proceed:

It cannot be said to have been in the contemplation of the learned Judges who held so, that the consent of the nearest sapinda would be sufficient, even if at the time of adoption that sapinda is no longer living and the person who is the nearest sapinda at the time does not consent to the adoption. It must, we think, be conceded that, if a sapinda who has given his consent withdraws it, afterwards the widow would not be entitled to act upon such consent, and it seems to us to be unreasonable to hold that a consent once given should become irrevocable by the death of the sapinda giving the consent so as to override the opinion of the sapinda who subsequently became entitled to be heard. But it is contended that, if the authority is acted upon within a reasonable time, that ought to be sufficient to obviate the necessity of obtaining the consent of the sapindas living at the dale of adoption. No doubt it may not be necessary that the consent should be given actually at the time the adoption is made, but it seems to us that at any rate a consent previously obtained from a deceased sapinda cannot be efficacious to validate an adoption which is not approved by the persons who are the nearest sapindas at the time the adoption is actually made.

5. Whereas in Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87 a judgment of Seshagiri Aiyar, J, the learned Judge says:

This train of thought (i. e, that the assent of the sapindas is presumptive evidence of the goodness of the act) precludes me from acceding to the proposition that mere lapse of time without more, or the death of the consenting sapinda would put an end to the authorisation freely and bona fide granted. It is settled that the fact that a consent to an alienation was given by a reversioner who is dead would not by itself be sufficient to enable the reversioner entitled to succeed to the property to impeach that consent. In my opinion the same reasoning should govern the assent to an adoption.

6. Mr. Ganapathi Aiyar insists that an adoption must be invalid if made without the consent of the nearest or near sapinda at the time; whereas, on the other hand, Mr. S. Vara-dachari maintains that, in the case of a consent once obtained by the widow, it is sufficient if the sapindas have the right of veto when the adoption is made a long time after the consent was originally given and if the circumstances have materially changed. On this we have no evidence here. In Anne Brahmayya v. Chelasami Rattayya (1924) 20 L.W. 503 Ramesam, J., says

In my opinion there is an essential difference between the authority of the husband and the assent of a sapinda. The former is intended to be exer cised only after the death of the husband. The latter is intended to be used at a reasonable time after the consent is given. When the interval is short the death of the sapinda may not matter; but a sapinda's assent is not to be pocketted by the widow and used long after it was given when entirely different considerations as to the expediency of the adoption may apply.

7. Mr. Varadachari, on the other hand, lays stress on the words quoted above from Mami v. Subbarayar (1911) 24 M.L.J. 484 ' which is not approved by the persons who are the nearest sapinda at the time the adoption is actually made'.

8. He says that these words import that, once a widow ha the consent of a near or the nearest sapinda and does not adopt within a reasonable time, the sapindas who are nearest at the time when the adoption is actually made and when the circumstances which originally prevailed when the consent was given may no longer exist must be deemed to have the power of veto. The case in Suryanarayana v. Venkataramana : (1903)13MLJ318 which was a general power given to the widow to adopt any boy at any time and was not acted upon for 9 years was construed and explained in Kamesam v. Batchamma (1914) M.W.N. 620 as meaning that an authority given in such general terms cannot be relied on as validating an adoption made several years afterwards when several of the sapindas who gave the authority had died and when other sapindas interested in the estate and affairs of the widow had come into existence and when other similar circumstances had intervened before the adoption took place. They also refer to Mami v. Subbarayar (1911) 24 M.L.J. 484. In the present case the facts are somewhat important because it is found that the reversioners of equal degree with the plaintiff Ammanna, namely Suriah and Moolaya actively participated in the adoption and the other two Venkatramaiah and Ammanna, the plaintiff, were in their houses at the time of the adoption and did not object. In this connection reliance is placed on the case reported in Venkammal v. Namasivaya Chetty (1895) 6 M.L.J. 35 where it was held that there must be a conscious exercise of discretion on the part of the sapinda as to whether assent shall or shall not be given. There was no evidence or allegation that the widow asked for the boy in consequence of any authority given by her husband. But the sapinda had allowed his boy to be brought up by the widow, had been frequently urged to give the boy in formal adoption and allowed him to be so adopted. The learned Judges held that the natural father's conduct showed that he gave a deliberate assent to the action of the widow in making the adoption. That case is possibly stronger than the present. But I think the facts must be taken strongly against the plaintiff on this point.

9. The second point taken by Mr. P.R. Ganapathi Aiyar is that, even if this adoption had taken place and even if it must be held to have taken place with the consent of the nearest sapinda, the person to whom the adoption was made, namely, the son of Somanna, never had any estate and that the adoption was therefore not made to the last male holder who is Somanna, but to Danalakshmi's husband Ramayya. It is further said that it is a principle of the Hindu Law that, where an estate has vested in the heirs of the deceased person, it cannot be afterwards divested by any adoption made by the widow in pursuance of a power, the only exception being that, if a widow has succeeded by inheritance to the estate of her husband and makes an adoption, she obviously divests herself ipso facto of her estate in favour of the adopted son. Many cases were quoted for this proposition. It is probably not necessary to go through all of them. Reference may be had to Annamma v. Mabbu (1875) 8 M.H. C.R. 108 where it was held that the estate of the deceased son having become vested in his heir cannot be defeated and divested by an adoption, and to Rathna Muda-liar v. Raghunadha Bhattar : (1898)8MLJ173 where it is clearly laid down that an adoption not made to the last male holder which would have the effect of divesting the estate taken on inheritance by the deceased's brothers would be invalid. The answer to this is said to be, to begin with, that the rule as to the last male holder does not apply to joint families and further that there is no scope for the rule as to divesting where there is, as in this case, a document, there being no question of inheritance and the adopted son clearly takes as devisee under the document Ex. I. The rule as to divesting has been quite lately explained by Kumaraswami Sastri, J. in the Tanjore Palace case, Maharajah of Kolhapur v. Sundaram Aiyar I.L.R. (1924) M. 1 where he says:

The whole principle underlying the rule as to divesting estates is that a superior title as heir cannot be created by a widow, while the property has already vested in a person who in law has taken the estate from the deceased heir of the last male holder.

10. In Bheema Deo v. Kunja Behari Deo (1921) 41 M.L.J. 648, which was referred to by the learned vakil for the respondents, a case of an impartible zemindari, it was held the power to adopt was not limited in point of time by the fact that a line of the husband's heirs had in succession come into possession of the estate. The limit to such power is when the husband's adopted son attains full age and so full capacity to continue the line by natural born sons or adoption. All the cases speak as to the divesting of an estate which has devolved by inheritance. In this case by this settlement, or whatever it may be called, Ex. I, the father-in-law of Dhanalakshmi purported to give her for some estate or other all his property with the exception of certain property given to his daughter under these words:

You are therefore hereby authorized to keep the whole of the property mentioned herein under your management throughout your lifetime and to pass the said property to the adopted son either after your death or at any time at your pleasure, meanwhile maintaining the adopted son at your own cost.

11. There can therefore in this case, it seems to me, be no question of inheritance where the mode of natural devolution has been artificially controlled by a document of this character and it is not contended that the settlor had no power to make such a disposition of his property. It has been argued at length on one side or the other that the donee took either a woman's estate or a mere life-estate. If she took a woman's estate she would have the power of course to pass the corpus of the estate in accordance with the terms of the document. If it is a life-estate solely as known to the English Law she either has a power of appointment within a certain class to the whole property after her death or the adopted son is a persona designata although he is to be selected from a certain class of persons. Whichever view is taken of this document, 1 do not think it makes any difference to the decision of the present point. If the rule of Hindu Law as to adoption to the last male holder is a corollary to the rule as to the divesting of already vested estates, it seems to me that these doctrines have no application to a case like the present, where the settlor after the transfer can clearly not be regarded as the last male holder, I therefore think the appeal fails on both grounds and I would dismiss it with costs.

Viswanatha Sastri, J.

12. Plaintiff is the appellant. He sued for a declaration that the adoption of the Ist defendant by the 3rd defendant was not valid and binding on the rever-sioners. The adoption was made on 10th June, 1910, as recited in the adoption deed Ex. II, and the deed recites that it was made in pursuance of an authority to adopt given to 3rd defendant by her deceased father-in-law on 26th April, 1891, under a deed, Ex. I. It was alleged in the plaint that the authority would not have been acted upon after the father-in-law's death; that no adoption in fact took place and that even if it took place it was not done ' with the consent of the then surviving heirs '. Both the Lower Courts found that the Ist defendant was adopted by the 3rd defendant; and that the authority given in Ex. I was sufficient. It was contended before us that the adoption was not valid because, (1) the authority given by the father-in-law was useless after his death; and (2) the adoption was made to 3rd defendant's husband and not to the last male holder, and at a time when the reversion had vested in others. The second appeal first came before me sitting as a single Judge, and as there was an apparent conflict between Mami v. Subbarayar (1911) 24 M.L.J. 484 and Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87, I ordered that it be posted before a Bench.

13. In Mami v.Subbarayar (1911) 24 M.L.J. 484 the adoption was made by the adoptive mother on the authority given to her by her deceased adopted son in a will left by him. The sapindas living on the date of the adoption did not give their consent; and it will appear from the judgment (at page 146) that the adoption was made in disregard of the opinion of the nearest sapindas then living. The learned Judges observe at page 148:

It seems to us that a consent previously obtained from a deceased sapinda cannot be efficacious to validate an adoption which is not approved by the persons who are the nearest sapindas at the time the adoption is actually made.

14. This case was examined in Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87 and it was held that mere lapse of time without more, or the death of the consenting sapinda, will not put an end to a consent freely and bona fide granted. I may here state that although the adoption in the present case was made 19 years after the date of authority, it was admitted in the plaint (paragraph 6) and conceded before us that, had the donor of the authority been alive on the date of adoption, the adoption would have been perfectly valid. The question therefore is whether his death ipso facto put an end to his authority. In Suryanarayana v. Ramadoss I.L.R. (1917) M. 604. it was held that such would not be the case, and in Anne Brahmayya v. Chelasami Rattayya (1924) 20 I.W. 503 Ramesam, J. observes at page 517 that--

When the interval is short, the death of the sapinda may not matter; but a sapinda's assent is not to be pocketted by the widow and used long after it was given, when entirely different considerations as to the expediency cf the adoption may apply.

15. In Suryanarayana v. Venkataramana (1903) 11 M.L.J. 318 the question arose whether the assent of sapindas to adopt 'any boy at any time ' would entitle a widow to adopt nine years after the date the consent was given; and it was held that the assent was not valid, (1) because it was too general in its nature, and (2) because during the nine years circumstances had materially changed, one of them being that two out of the three assenting sapindas and two dissenting sapindas had died. This dictum has been explained in Kamesam v. Batchamma (1914) M.W.N. 620. I may here state that the authority in the present case was not to adopt any boy, but to adopt a boy 'from among the sons of your brother, or the sons of my brothers, or their daughters' sons or their sons'; and that the boy adopted satisfied this description. There was no doubt the liberty to adopt ' whenever it was necessary '. In my opinion the trend of these decisions is that when the consent is given by the father-in-law who happens to be the nearest sapinda then living, his death before the adoption is made would not ipso facto revoke the consent; and that such consent will come to an end only if circumstances had materially changed after his death. In the present case it was not alleged that there has been any change in the circumstances on the date the adoption was made, caused either by the coming into existence of other nearer sapindas, or by the death of sapindas then alive, or by reason of the estate having vested in third persons. The evidence shows that five sapindas were alive on the date of the adoption. The boy adopted is the son of one of them and his natural father was present at the adoption. Another sapinda assisted the widow during the ceremony, and a third was present. Plaintiff and the fifth sapinda were on that date in their houses in the village, and did not in any way indicate to the widow that they objected to the adoption. Soon after the adoption, steps were taken to transfer the patta in the name of the adopted boy and notices were sent to the plaintiff. From what the District Munsif says in paragraph 49, the plaintiff made no serious attempt to oppose the transfer, and Venkataramiah alleged that his son had been adopted and not the first defendant. And what is more the suit was instituted on the last day of limitation although plaintiff Was aware of the adoption at any rate when he got the notices from the Tahsildar.

16. It was said that the 3rd defendant had to seek out plaintiff and Venkataramiah and obtain their consent and that she did not do so. She was not adopting under any consent given by sapindas then alive; and she preferred to adopt under an authority given to her by her deceased father-in-law. This authority had the approval of three out of five sapindas alive on the date of the adoption; and in the case in Mami v. Subba-rayar (1911) 24 M.L.J. 484, the consent was held not to 'be efficacious to validate an adoption which is not approved by the persons who are the nearest sapindas at the time the adoption is actually made' (see at p. 148) That presence at an adoption ceremony would imply acquiescence, though such acquiescence may not be equivalent to consent, is the view taken in Ramchandra v. Mulji Nanabhai I.L.R. (1896) B. 558. In the present case all that was needed was acquiescence in a consent already given, and not fresh consent.

17. I therefore come to the conclusion that in the circumstances of the present case the authority under which the 3rd defendant acted was not at an end on the date the adoption was made.

18. It was next contended by appellant's vakil that the adoption was invalid because it was not made to the. last male holder, who in this case was said to be the father-in-law. The father-in-law had given the properties to the 3rd defendant under Ex. I, and possession was delivered over to her on the date of the deed (26th April, 1891). The deed goes on to say:

You are therefore hereby authorized to keep the whole of the property mentioned herein under your management through your lifetime, and to pass the said property to the adopted son either after your death or at any time at your pleasure.

19. And it concludes by saying-

You shall enjoy the said lands at your pleasure, yourself paying the Government taxes thereon.

20. I fail to see how after this transfer the father-in-law could be deemed to be the last male holder. The terms of Ex. I above stated appear to me to be similar to the terms of the will which was construed in Srinivasa v. Dandayuda-pani I.L.R. (1889) M. 411. The adopted son (Ist defendant) would not succeed by inheritance but only as devisee under Ex. I; and the rule that the adoption will be invalid unless made to the last male holder applies only to cases where the adopted son would take by inheritance. See Venkatarama Aiyar v. Gopalan : (1918)35MLJ698 . As observed by Kumaraswami Sastri, J. in Maharaja of Kolhapur v. Sundaram Aiyar I.L.R. (1924) M 1 24 --

The whole principle underlying the rule as to divesting estates is that a superior title as heir cannot be created by a widow, while the property has already vested in a person who in law has taken the estate from the deceased heir of the last male holder.

21. In this view it is not necessary to consider the cases relied upon by appellant's vakil [Chandra v. Gojarabhai I.L.R. (1890) B. 463, Shri Dharnidhar v. Chinto I.L.R. (1895) B. 350, Lakshmibhai v. Vishnu Vasu-dev I.L.R. (1905) B. 410 and Dattatraya Bhimrao v. Gangabhai I.L.R. (1921) B. 541 as in all of them the adoption was after the estate had vested by inheritance in a third person.

22. I would therefore dismiss the second appeal with costs.


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