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C.V. Cunniah Chetty Vs. P.L. Dharmalingam Chetty (Decd.) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberO.S. Appeal No. 94 of 1963
Judge
Reported inAIR1972Mad233
ActsLimitation Act - Article 141
AppellantC.V. Cunniah Chetty
RespondentP.L. Dharmalingam Chetty (Decd.) and ors.
Cases ReferredIn Chandrasekhara v. Kulandaivelu
Excerpt:
hindu law--widow--adoption by sapindas--consent for adoption, not exercised within reasonable time--boy adopted different while consent of sapindas was with reference to a particular individual--whether these factors would make adoption invalid. ;on the question raised as to whether an adoption made by a widow would be invalid in view of the fact that the sapinda's consent for adoption was not exercised within a reasonable time and as the consent applied for was with reference to a particular individual, adoption of another boy would make the adoption invalid, ;held, in this state, a widow may adopt when duly authorised by her husband's kindred. mere lapse of time without more, or the death of the consenting sampinda will not put an end to a consent freely and bona fide granted. the..........is by the reversioner of the estate of one collah venkata muthurama chetti on the death of his widow collah ramaratnamma on or about 16-11-1956. the plaintiff's case is that collah venkata muthurama chetti was one of three sons of colla venkata cunniah chetti, the other two sons being collah venkata ravanappa chetti, and collah venkataraghava chetti. the father and three sons as a result of a suit for partition filed by c. v. cunniah chetti followed by a decree dated 27-4-1905 and a further decree dated 11-4-1906 became divided in interest and estate and distinct properties were allowed to each of the sons thereunder; the father having divested himself of all properties was content with a provision for maintenance of himself and his wife. the said c. v. muthurama chetti, the last of.....
Judgment:
1. The plaintiff is the appellant. The suit is by the reversioner of the estate of one Collah Venkata Muthurama Chetti on the death of his widow Collah Ramaratnamma on or about 16-11-1956. The plaintiff's case is that Collah Venkata Muthurama Chetti was one of three sons of Colla Venkata Cunniah Chetti, the other two sons being Collah Venkata Ravanappa Chetti, and Collah Venkataraghava Chetti. The father and three sons as a result of a suit for partition filed by C. V. Cunniah Chetti followed by a decree dated 27-4-1905 and a further decree dated 11-4-1906 became divided in interest and estate and distinct properties were allowed to each of the sons thereunder; the father having divested himself of all properties was content with a provision for maintenance of himself and his wife. The said C. V. Muthurama Chetti, the last of the three brothers got for his share various shops and a big dwelling house under the said decree. C. V. Muthurama Chetti died on 1-12-1909, leaving his child-wife Collah Ramaratnamma, aged about 12 or 13, who succeeded to all the said properties of her husband. As Collah Ramaratnamma was then a minor, letters of Administration to her husband's estate was issued. On her attaining majority in or about 16-4-1918, all the properties were put in her possession.

2. The contention of the plaintiff, who is the next reversioner, is that the bulk of the large estate left by C. V. Muthurama Chetti was either mortgaged or sold by his wife Collah Ramaratnamma without any legal necessity and that the transactions are not real or bona fide or for proper consideration and that they are not binding upon him. He therefore prayed for possession of various items of properties from the alienees from Collah Ramaratnamma, and impleaded them as defendants 1 to 11. The plaintiff also impleaded Collah Venkata Ravanappa Chetti, who claimed to be the adopted son of C. V. Muthurama Chetti as the 14th defendant the adoption having taken place on 21-6-1945 on the strength of the alleged power to make an adoption given by the deceased Collah Venkata Muthurama Chetti. The plaintiff questioned the validity of the adoption and claimed possession of the properties as set out above. It is seen that Collah Venkata Ravanappa alias C. V. Ravanappa Chetti claiming himself to be the adopted son, filed C. S. 12 of 1961 in forma pauperis for possession of the properties from the alienees, who were impleaded as defendants in that suit. In both the suits issues were raised on the question of the validity of the adoption and the binding nature of the various alienations and mortgages made by Collah Ramaratnamma. Both the above suits were tried together and the issue relating to adoption was tried first. There is also an issue in C. S. 56 of 1959, whether the suit filed by the reversioner was barred by limitation.

3. Both the above issues were taken up for trial as preliminary issues. Issue No. 17 relating to the question whether the suit was barred by limitation was taken first and the learned trial Judge recorded the finding in C. S. 56 of 1959 that the suit being one for possession by the reversioner within 12 years from the date of the death of the widow, was governed by Art. 141 of the Limitation Act and the suit is therefore within time.

4. The next question dealt with by the learned Judge related to the validity of the adoption. The case relating to the adoption as put forward by the adopted boy, the 14th defendant in C. S. 56 of 1959 and as the plaintiff in C. S. 12 of 1961 is as follows:

5. Rao Bahadur Collah Venkata Cunniah Chetti had three sons, Ravanappa, Raghavalu and Muthurama. Muthurama died in 1909 leaving his wife, Ramaratanamma, who was 13 or 14 years of age at that time. The death of Muthurama was attended by various relations and friends and during that time Rao Bahadur Cunniah Chetti consoled Ramaratnamma (his daughter-in-law) and promised to get Srinivasalu, the father of the 14th defendant, adopted as her son in order to perpetuate the lineage of his son Muthurama so that the adopted son may offer oblations to Muthurama. But as the father of Srinivasalu was reluctant, the adoption did not take place. Subsequently in the year 1944 Ramaratnamma intimated her senior brother-in-law Collah Ravanappa of her desire to adopt a boy and requested his consent and he gave his consent thereof. Soon after Ravanappa died and then Ramaratnamma intimated in writing, her desire to adopt a boy for securing the good end of her late husband, to her brother-in-law Collah Venkata Raghavalu, his son Collah Venkata Cunniah and his mother-in-law Collah Mangamma, and requested their consent to the adoption of a boy, but they did not give their consent for improper reasons and ultimately on 21-6-1945 the 14th defendant was adopted by Ramaratnamma in the presence of purohits, relations and friends with due formalities, that the 14th defendant was given by his parents in adoption and was taken by Ramaratnamma, that Datta Homam was performed in the manner prescribed by the Shastras. The factum of adoption and performance of the ceremony was embodied in the adoption deed (Ex. D-5), which was attested by numerous persons of the locality and duly registered. The 14th defendant, therefore, contends that he is the validly adopted son of late Muthurama.

6. The plaintiff-reversioner's contention is that the adoption is not true and the same even if true is invalid for want of consent from the nearest reversioner at the time the adoption was made, that the consent of Cunniah Chetti in 1909 is not valid and even if true had lapsed. The consent of Ravanappa in 1945 is not true, that the consent applied for in 1945 was rightly refused as a named boy was not indicated.

7. The learned trial Judge after dealing with the evidence, found that the adoption of the 14th defendant was factually made, that due formalities and required ceremonies were duly performed and on the strength of the consent of Rao Bahadur Cunniah Chetti given in 1909 and that of Venkata Ravanappa in 1945, the adoption was made and therefore the adoption was valid. The learned Judge also considered the conduct of Ramaratnamma who made the adoption in 1945 and later repudiated the adoption subsequent to 1949 and observed that such repudiation would have no bearing on the validity of the adoption made in 1945. In the result, the learned Judge dismissed the suit filed by the reversioner and in that view the learned Judge observed that it was unnecessary to go into the other issued. The present appeal is filed by the plaintiff and the principal contention raised relates to the validity of the adoption, the factum of adoption having been admitted.

8. In order to substantiate his case as to adoption the 14th defendant has examined his father Srinivasalu, an attestor to the adoption deed and one Alwar Chetti, who was aged 83 years in 1963, who spoke about the authority to adopt given to Ramaratnamma by Rao Bahadur Cunniah Chetti in 1909. .. .. .. ..

(After discussion the evidence His Lordship proceeded):

9. Mr. Vedatachariar, the learned counsel for the appellant, contends (1) that the sapinda's consent must be exercised within a reasonable time and (2) the consent must be applied for with reference to a named boy. In the present case the adoption was made by the widow 37 years after taking the consent from her father-in-law and reverable protector. Regarding the application for consent with reference to a named boy it has been observed that the father-in-law in 1909 consented to his daughter-in-law adopting Srinivasalu Chetti, but the widow however adopted the son of Srinivasalu Chetti. In support of his contention the learned counsel referred to numerous decisions and we shall refer to a few of them.

10. It is settled law in this Presidency since the decision of the Privy Council in Collector of Madurai v. Muthuramalinga Sethupathi (1867-69) 12 Moo Ind App Raghunada Deo v. Brozo Kishoro Pattadeo, (1876) ILR 1 Mad 69 (PC), that a widow may adopt duly authorised by her husband's kindred. In Mami v. Subbarayar, (1913) ILR 36 Mad 145, it was held that the consent lapsed with the death of the sapinda relying upon an obiter dictum in Subrahmaniyam v Venkamma, (1903) ILR 26 Mad 627. In Suryanarayana v. Ramadoss. ILR 41 Mad 604 = (AIR 1919 Mad 1077), their Lordships held that a sapinda, who has given his consent to the widow to make an adoption, cannot arbitrarily withdraw his consent before it was acted upon by his widow. The party giving his consent can deliberately revoke it for justifiable reasons, but where no reasons are given by him courts will not find out a justification for the revocation. 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.

In Anne Brahmayya Chellasami v. Rattayya, 20 Mad LW 503 = (AIR 1925 Mad 67), Ramesam, J. observed-

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

In Ammanna v. Satyanarayana, ILR 49 Mad 636 = (AIR 1926 Mad 916), Odgers and Viswanatha Sastri, JJ. upheld an adoption made by a widow after the death of the assenting sapinda and approved by the sapinda living at the time of the adoption. Viswanatha Sastri, J., however, was prepared to go to the length of holding that such subsequent approval was not essential. In Kalaga Annapurnamma v. Kalaga Appaya Sastri, ILR 52 Mad 620 = (AIR 1929 Mad 577 (FB)), the Full Bench consisting of Coutts Trotter C. J., Madhavan Nair and Jackson, JJ. answered the question referred to them for decision, viz., whether the assent of a son to an adoption made by his mother is sufficient assent in Hindu law to validate the adoption when there is no change in the circumstances and there are no other grounds for the next presumptive sapinda to object to the adoption, when actually made, in the affirmative. In Kanakaratnam v. Narasimha Rao, ILR (1942) Mad 173 = (AIR 1941 Mad 937), the Full Bench consisting of Sir Lionel Leach C. J., Krishnaswami Ayyangar and Chandrasekhara Aiyar, JJ. held that in the Madras Presidency a widow cannot adopt unless she has received direct authority from her husband offered before his death or at his death by will or consent of the nearest sapinda unless such consent is improperly withheld in which case she can go to the next nearest sapinda.

Bearing in mind that the adoption bears a spiritual benefit on the deceased husband and that in the Madras Presidency a widow can only adopt when she has received an authority to do so it seems to us that her motive is entirely irrelevant. However, spiteful her action may be towards others, the benefit conferred upon her deceased husband by her action is in no way affected and the fact that she cannot act without authority makes the position all the more clear. In Lakshmiranarayana Sastri v. Sundararamayya, their Lordships observing the motive of the widow in exercising the power conferred on her husband after a long lapse of time of nearly 40 years, is irrelevant for deciding on its validity. In that case the widow postponed making the adoption till the boy engaged by her husband was no longer available and made an adoption of another boy after the boy named by the husband ceased to be available for adoption. In such circumstances, the adoption was held to be valid. The questions raised in this appeal have been fully considered by a Division Bench of this court to which one of us was a party. The said judgment is in Venkalakshmi Ammal v. Jagannatha, . This question was fully examined with reference to the Hindu law texts. Their Lordships held that mere postponement can never frustrate a right of the widow to adopt so long as she is alive. In that case adoption was made by the widow 27 years after the death of her husband. The objects of adoption are two-fold: the first is religious to secure spiritual benefit to the adopter and his ancestors by having a son for the purpose of offering funeral cakes and libations of water to the names of the adopter and his ancestors. The second is secular, to secure and heir and perpetuate the adopter's name.

In Chandrasekhara v. Kulandaivelu, , the Supreme Court agreeing with earlier decisions of the Privy Council, has expressed the view that the validity of an adoption is to be determined by spiritual rather than temporal considerations and that devolution of property is only of secondary importance. If that is so, the fact that Ramaratnamma adopted Srinivasalu's son and not Srinivasalu as directed by her father-in-law (venerable protector) will not matter at all. Further when Ravanappa's consent was applied for by Ramaratnamma, the fact that consent was given not with reference to a named boy, will not also matter. Equally so the non-mention of a named boy in Ex. D-1, which is a request made by Ramaratnamma in January, 1944 to her brother-in-law, brother-in-law's son and mother-in-law to grant permission to adopt a boy.

11. We are, therefore, of opinion that the adoption of the 14th defendant by Ramaratnamma is valid.

12. After the adoption which took place tin 1945, the adoptive mother would appear to have changed her mind and went back upon the adoption from 1949. Ramarathnamma having adopted the 14th defendant and affirmed the adoption in a series of transactions, it is not open to her to go back upon the adoption and deny the adoption.

13. We are of opinion that the adoption of the 14th defendant by Ramaratnamma is valid and there are no merits in the appeal.

14. Accordingly we dismiss the appeal with costs of the 12th respondent.


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