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Kandaswamy Goundar Vs. Chinnammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1933Mad540
AppellantKandaswamy Goundar
RespondentChinnammal and ors.
Cases ReferredIn Velanki Venkatakrishna Rao v. Rama Lakshmi
Excerpt:
.....to uphold an adoption. this is clearly borne out by the documentary evidence also; 4 and the evidence of the widow that they were not on friendly terms for a month before the adoption, the defence evidence that the widow left the house some time in february 1921 may well be true; from these circumstances it may well be inferred that the adoption was made by the widow with a view to spite her daughters and not on account of any consideration for the spiritual welfare of her husband. 7. it is more than probable, as suggested by the district judge, that the idea of adoption may well have been suggested by p. having regard to all the circumstances, i am satisfied that the adoption in this case did not take place in consonance with hindu law and that it must be held bad in law on..........the defendants together with mesne profits. defendant 1 is the second daughter of the deceased muthu goundan and defendants 2 and 3 are his other daughters. defendant 4 is the husband of the first daughter. defendants 5 to 7 are persons who are in possession of some of the items of the property. muthu goundan died in the month of march 1920, and on 11th march 1921 his widow, kaliammal, p.w. 1, adopted the plaintiff, the son of muthu goundan's brother, p.w. 2. the plaint alleged that muthu goundan, before his death, had authorized his widow to adopt and that she took the plaintiff in adoption with the consent of the sapindas. the daughters who are defendants contested the adoption and said it was brought about at the investigation of p.w. 2 and that their mother who was not on good.....
Judgment:
ORDER

Madhavan Nair, J.

1. The plaintiff is the appellant. This appeal arises out of a suit instituted by the plaintiff for a declaration that he is the adopted son of one Muthu Goundan of Siluvampatti and as such is entitled to recover the suit properties from the defendants together with mesne profits. Defendant 1 is the second daughter of the deceased Muthu Goundan and defendants 2 and 3 are his other daughters. Defendant 4 is the husband of the first daughter. Defendants 5 to 7 are persons who are in possession of some of the items of the property. Muthu Goundan died in the month of March 1920, and on 11th March 1921 his widow, Kaliammal, P.W. 1, adopted the plaintiff, the son of Muthu Goundan's brother, P.W. 2. The plaint alleged that Muthu Goundan, before his death, had authorized his widow to adopt and that she took the plaintiff in adoption with the consent of the sapindas. The daughters who are defendants contested the adoption and said it was brought about at the investigation of P.W. 2 and that their mother who was not on good terms with them adopted the plaintiff with a view to spite them and deprive them of their inheritance. Defendant 1 also put forward a will by which the deceased Muthu Goundan left the properties after his death to be enjoyed by her with directions to maintain his widow, etc. The two main questions in the case are: (1) whether the adoption set up in the plaint is true and valid, and (2) whether the will set up by the defendants is true and valid (issues I and 2).

2. The factum of adoption is not disputed. It is also not disputed that though the plaintiff stated in the plaint that all the sapindas were consulted, the only sapinda who was consulted is the adopted boy's father, P.W. 2, the nearest sapinda. The learned District Judge found that the authority said to have been given by the deceased husband to adopt was not proved and that the circumstances show that the motive of P.W. 2 in consenting to the adoption was to secure advantage for himself and of the widow in making the adoption was to defeat the rights of Muthu Goundan's daughters. Holding these motives to be 'capricious and corrupt' he held that the adoption was invalid in law and that the plaintiff is not entitled to recover possession of any portion of the properties. He also found that the 'will' set up by defendant 1 was not proved. As the adoption was found to be invalid, the plaintiff's suit was dismissed. Against the decree dismissing the suit the plaintiff has filed this appeal and defendant 1 has filed a memorandum of cross-objections in which she contends that the will set up by the defendants is true and valid and that the order disallowing costs is wrong.

3. The law is well settled that in the absence of authority by the husband to adopt, the consent of the nearest sapinda will be enough to uphold an adoption. If the consent of the sapinda was obtained under circumstances which show that he gave the consent with a view to benefit himself or if the facts show that the widow was making the adoption to defeat the interest of this or that sapinda, and not to promote the spiritual welfare of her husband, then the motives of the parties are said to be 'corrupt and capricious' and the adoption will be invalid for that reason. This may be said to represent the state of the law in this Presidency: see The Collector of Madura v. Moothoo Ramalinga Sethupathy (1867-69) 12 M.I.A. 397 (P C), Velanki Venkatakrishna v. Rama Lakshmi (1876) 1 Mad 174 and Krishnayya Rao v. Raja of Pittapur AIR 1928 Mad 994. The question is how far the adoption in this case is vitiated by 'corrupt and capricious' motives.

4. Exhibit D is the adoption deed. It bears the mark of Kaliammal and it has been attested by P.W. 2 and many other witnesses. It states that the deceased had authorized the widow to take a boy in adoption for him and that in addition to this authority she consulted P.W. 2 and most of the other dayadis, that with their full consent Kandaswamy Goundan has been adopted and that he shall inherit all the properties of the deceased Muthu Goundan. Though the learned Advocate-General took us through the evidence relating to the authority given by the deceased Muthu Goundan to adopt, it did not appear to me that he seriously challenged the correctness of the learned Judge's finding on the point. The evidence bearing on the question is purely oral and I do not see any reason to differ from the learned Judge's conclusion on that point.

5. I will now discuss the evidence in so far as it relates to the motive of the parties which are said to vitiate the adoption. The evidence on this point is meagre. But such as it is, I think it is enough to support the conclusion arrived at by the learned District Judge. Mr. Varadachariar argues that the evidence shows that the so-called consent of P.W. 2 was given under the impression that the deceased Muthu Goundan had authorized the widow to adopt a boy, that therefore there was no free and independent consent given by the sapinda for the adoption, and on that account the adoption is invalid. This argument is not without force. But as I do not find it referred to in the lower Court's judgment, I prefer to rest my conclusion on the specific grounds on which the learned District Judge has dealt with the case. Muthu Goundan died in March 1920 and the widow did not set about making an adoption until a full year after her husband's death. This long delay requires explanation. The explanation given by her, P.W. 1, and the father of the adopted boy, P.W. 2, that this delay was due to pollution on account of Muthu Goundan's death is, as the District Judge says, a specious one and cannot for a moment be believed. It is common ground that for a long time (it is not clear from the evidence how long) the widow lived with her daughters in her husband's house and when she left it, she went to the house of P.W. 2 where the ceremony of adoption took place. It is admitted that though the daughters were invited, none of them accepted the invitation and was present at the ceremony. Though in her evidence P.W. 1, the widow, at first stated:

there was no ill-feeling between me and my daughters before the date of the adoption,

she had to admit that her daughters were not on friendly terms with her for a month before the adoption. This is clearly borne out by the documentary evidence also; for, in Ex. 4 in the statement filed by her before the First Class Magistrate in connexion with the proceedings between her and her daughters under Section 145, Criminal P.C., in the month of June 1921, she stated that last Thye (11th February 1921) her daughters and the husband of one of them came to her lands and molested her enjoyment. It is difficult to decide as to what was the exact causa for the quarrel between the mother and the daughters. It may be that the mother getting knowledge of the will set up by defendant 1 resented it or it may be that the quarrel originated over the proceeds of the sale of paddy amounting to Rs. 50 as early as October, November 1920 as stated by D. Ws. 1 and 2; but whatever might have been the true cause, it cannot be doubted that there was ill-feeling between the mother and the daughters. D.W. 1, the husband of defendant 1, says that at the end of February 1921 the widow went to P.W. 2's house for food. D.W. 2, his wife, also, speaks to the same effect. Having regard to the date of the trespass mentioned in Ex. 4 and the evidence of the widow that they were not on friendly terms for a month before the adoption, the defence evidence that the widow left the house some time in February 1921 may well be true; and within a month after going to P.W. 2's house the adoption took place.

6. The widow who never thought of making any adoption for about a year after her husband's death quarrels with her daughters, goes to P.W. 2's house and adopts his son and she does not consult any of the other sapindas. From these circumstances it may well be inferred that the adoption was made by the widow with a view to spite her daughters and not on account of any consideration for the spiritual welfare of her husband.

7. It is more than probable, as suggested by the District Judge, that the idea of adoption may well have been suggested by P.W. 2 for his own ends. I have already said that the other sapindas were not consulted. D. Ws. 4 and 5, cousins of Muthu Goundan, state that they were given no notice whatever that an adoption was either contemplated or performed. In the ordinary course P.W. 2 will not become entitled to his deceased brother's properties. But if his son is given in adoption, he being young, P.W. 2 would virtually acquire control over the property and will be in a position to benefit himself. Swayed by considerations such as these, he took advantage of the ill-feeling of the widow towards her daughters and gave consent to the adoption. On 15th July 1922 the widow executed a simple bond for Rs. 2,000 in favour of her brother-in-law, P.W. 2. This was followed on 11th October 1924 by a hypothecation bond in his favour hypothecating most of her properties.

8. The widow's explanation that these transactions were entered into with P.W. 2 to meet the expenses incurred in connexion with the criminal case in which her husband was involved along with P.W. 2 and many others does not seem to bear the impress of truth. In these circumstances it is difficult to hold that P.W. 2 gave his consent to the adoption freely and without any desire to benefit himself. Having regard to all the circumstances, I am satisfied that the adoption in this case did not take place in consonance with Hindu law and that it must be held bad in law on account of the corrupt and capricious motives of P.W. 2, the nearest sapinda, as well as of P.W. 1, the widow. As the adoption is not proved to be valid, the plaintiff's suit was rightly dismissed by the lower Court and the appeal is also dismissed. The appellant will pay the costs of the respondents.

Jackson, J.

9. I agree. The plaintiff (appellant) sues for a declaration that he is the validly adopted son of one Muthu Goundan. In the plaint he says he was adopted with the consent of sapindas, and the wife of Muthu Goundan was also authorized by her husband in his lifetime. This authorization by the husband has been found to be untrue, and the learned Advocate-General on appellant's behalf does not seriously traverse that finding of fact. He relies upon the consent of Muthu Goundan's brother who is also natural father of the plaintiff and his 2nd witness, Vellayana Goundan. But this consent has never been proved. In the deed of adoption the widow states that her brother-in law fully consented-Ex. D-and Vellayana has attested this deed-but neither the widow nor Vellayana were questioned about their consent when they were in the box. Vellayana says She asked me to give her the boy before the adoption took place. I consented.' But from this sole sentence it cannot be inferred that she asked for his consent to the adoption and he applied his mind to the matter. Suppose she asked some stranger for the boy, and he used these words, 'She asked me for my boy and I consented,' would it for a moment be argued that the stranger had been consulted about, and had agreed to, the propriety of an adoption? And there is even less room for such presumption in the case of Vellayana; for he has made it abundantly obvious that he was impressed with the idea that the husband had given his consent. He not only swears so in this suit; but in the criminal Court proceedings in September 1921-Ex. 8-he swore that the widow adopted his son according to his brother's wishes. Where then was the need for his consent?

10. On this short point the appellant-must fail, and it is a point of substance going to the root of the matter; not a mere technicality. But even assuming that there was the requisite consent, as the learned District Judge seems to have assumed, his ultimate decision that the adoption is invalid is, in my opinion, correct. The vital question in these cases is whether the adoption is made in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive.

11. The Judicial Committee in the Ramnad case [Collector of Madura v. Moothoo Ramalinga (1867-69) 12 MI A 397 (P C)] with what is sometimes overlooked a very special insistence upon the necessity of dealing with each case upon its own facts, clearly laid down this principle, adding that there should be such evidence of the assent of kinsmen as suffices to show that the act is done bona fide. In Velanki Venkatakrishna Rao v. Rama Lakshmi (1876) 1 Mad 174 this passage is cited, and it is explained that there should be support to the inference that the widow in making the adoption was actuated neither by capricious nor corrupt motives, though nice questions as to the particular motives should not be introduced. As an avowed explanation this fresh passage is not, if I may say so, as helpful to me as I could wish; but apparently it means that the question of the widow's motives is to be decided on broad lines. It certainly does not mean that the widow's motives are irrelevant; for it states in terms:

sufficient to support the inference that the adoption was made by the widow not from capricious or corrupt motives.

12. Now in the present case the learned Judge finds that the widow was not fulfilling a religious duty, but was acting entirely from secular motives in order to spite her daughters and their husbands, and in order to defeat their interest. As my learned brother has pointed out, there is no reason for differing from this finding and therefore the adoption must be held to be invalid. Of course if the consent of Vellayana had been proved, and if he, as representative of the reversioners, was consenting to an adoption which would defeat his and their interest, his consent would be strong support to the inference that the widow had acted bona fide. But in this case the interest of the reversioners is so remote as to be negligible; and Vellayana so far from defeating would on the contrary have advanced his own interests, since nobody denies that a father betters his position if he can persuade a well-to-do family to adopt his boy. Therefore the proof of Vellayana's consent, while it would be valuable, and indeed essential, for establishing the validity of the adoption, would in the circumstances of this family, be quite insufficient to show that the widow acted bona fide.

Madhavan Nair, J.

13. As we have dismissed the plaintiff's suit, it is not necessary to consider whether the will set up by defendant 1 has been proved to be genuine or not. We therefore dismiss the memorandum of objections, but the appellant must pay the costs of respondent 1 on the memo. Costs only on one memo or objections.


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