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Gopinath Shetty (Minor) by Next Friend Father, K. Subbayya Shetty Vs. Santhamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1956)2MLJ38
AppellantGopinath Shetty (Minor) by Next Friend Father, K. Subbayya Shetty
RespondentSanthamma and ors.
Cases ReferredSeetha Neithyar v. Kelu Menon
Excerpt:
.....that such an adoption is more like the krittrima adoption does not mean that adoption under the aliyasantana system is purely secular and has no religious significance nor any religious background but only based on purely material considerations. 18. in this case both the courts found that the plaintiff has failed to establish a custom that adoption in the aliyasantana family, at any rate in the family in question, was to retain rights in the natural family. the lower courts have found that the plaintiff has failed to so establish. in the result, i am satisfied that the view taken by the lower courts, that the plaintiff is not entitled to any rights of maintenance from the katta family, is correct......some months, he has, with a view to safeguarding the property of his family and for continuing the family adopted kalamma (whom he has brought up) in accordance with the rules of aliyasanthana law and also in accordance with the karar. the document provides that kalamma, the adopted niece, shall get her name entered in the public records and shall reside in the family house and enjoy as she pleases under permanent right hereditarily in the line of descendants born to her. provision is made for her marriage to be suitably performed at his own expense from the income of the properties. the deed further provides that the entire duties connected with the said property and house, which were dealt with and belonging to the family of bainki banta, such as daiva devara kambala, gorri, etc.,.....
Judgment:

Krishnaswami Nayudu, J.

1. This appeal raises an interesting question as to the legal effect of an adoption by a female member of an Aliyasanthana family.

2. The plaintiff is the appellant. Himself and the defendants are members of an undivided Aliyasanthana family known as Yenmoor Katta. The plaintiff's maternal grandmother Kalamma was adopted by one Peruvaje Bainki Banta. The plaintiff's case is that, notwithstanding her adoption to another family, she continued to be a member of the Yenmoor Katta family, visiting the family house occasionally and participating in the income of the family. The 1st defendant is at present the eldest member and the adalthedar of the family. Defendants 2 and 3 are in possession of portions of the family property. The plaintiff's case is that he is entitled to maintenance from this family, that the adoption of his maternal grandmother did not have the effect of severing her from the family, as adoption was purely a secular affair and had no religious efficacy, the only object of such adoption being to secure for the adoptee the properties of the family into which she had gone in adoption. The defendants contended that the plaintiff being a descendant of Kalamma could not be considered to belong to Yenmoor Katta family, that in fact Kalamma lived in the family of the adoptive father, that she and her children instituted O.S. No. 596 of 1920 on the file of the District Munsif's Court, Puttur, against the members of the Katta family for maintenance and the suit was dismissed as having been compromised and that the plaintiff who was born long subsequent to the said suit was bound by the terms of the said decree and his claim was barred by res judicata and estoppel.

3. The trial Court found that Kalamma's marriage was performed by his adoptive father and that thereafter she took up her residence with her husband in a place away from the Katta family house and disbelieved her case that she continued' to reside in the family house or that her wedding was celebrated there. It also found that the suit was barred by res judicata and following the decision in Seetha Neithyar v. Kelu Menon : AIR1939Mad564 held that the effect of the adoption would be to sever Kalamma from the family of her birth unless a custom to the contrary was proved; that the plaintiff failed to establish such a custom or law in the Nadavar community, to which the parties belong, that Kalamma lost her right in her natural family absolutely and for ever by reason of her adoption and that the plaintiff had no right to be maintained from and out of the income of the Yenmoor Katta family. This view was accepted by the learned Subordinate Judge in appeal.

4. The deed evidencing the adoption is Exhibit B-1 termed an adalthekarar which is an agreement in respect of management executed by Bainki Banta to his nephew and niece. The document recites that as the said Bainki Banta has become old and has fallen ill for some months, he has, with a view to safeguarding the property of his family and for continuing the family adopted Kalamma (whom he has brought up) in accordance with the rules of Aliyasanthana law and also in accordance with the karar. The document provides that Kalamma, the adopted niece, shall get her name entered in the public records and shall reside in the family house and enjoy as she pleases under permanent right hereditarily in the line of descendants born to her. Provision is made for her marriage to be suitably performed at his own expense from the income of the properties. The deed further provides that the entire duties connected with the said property and house, which were dealt with and belonging to the family of Bainki Banta, such as Daiva Devara Kambala, Gorri, etc., should be got performed by Kalamma herself in future without default. Provision is also made for her to conduct the poojas in the temple during Nava-rathiri as he has been doing till then. The dignities and privileges got by him up till then from the temple and elsewhere are to be obtained in future by the said Kalamma.

5. Kalamma took possession of the properties and from the documents filed in the case and examined by both the Courts including the proceedings before the revenue authorities for the mutation of the patta, it is seen that Kalamma laid claim as the seniormost member in her branch of the Katta family to have a mutation effected in her name, which was opposed by the other members of the family and the Tahsildar accepted the contention that Kalamma having been adopted was not entitled to get the transfer of the registry effected in respect of the property belonging to the Katta family. In O.S. No. 596 of 1920 similarly her claim to be maintained from the Katta family having been negatived, a compromise was effected whereby she practically withdrew her claim. Both the lower Courts have found that she continued only as a member of the Peruvaje family ever since the adoption and ceased to be a member of the Katta family.

6. It is urged that according to the custom and rules in Aliyasanthana family, adoption is purely secular and has no religious significance and the adopted person is not severed from the family or engrafted into the new family, the only object of the adoption being to make over the properties of the adopted family to her. The adoption of female member under the Marumakkattayam and Aliyasanthana systems has bfen recognised as a mode of perpetuating any tarwad which is likely to become extinct. While dealing with adoption under the Marumakkattayam and Aliyasantana Law, there is the following passage in Maynt's Hindu Law and Usage, 11th edition, page 980:

The reason, and. objects of an adoption are wholly secular and not religious. The adoptive tarwad in the two systems takes the place of the adoptive father under the Mitakshara Law. There are no ceremonies prescribed, the non-observance of which would in any way invalidate an adoption. As the object is the perpetuation of the tarwad, females are very often, though not invariably, among the adoptees. It is said that the form of adoption resembles the Kritrima form. But what is really meant by this statement is that the adoption is based purely on secular motives and that it has no religious significance. The law applicable being essentially customary, the question whether the adopted person loses his rights of inheritance in the natural family can be decided, only by having recourse to evidence as to custom, in the absence of texts or express judicial decisions.

7. It is observed that the ruling family of Travancore would have long ago become extinct but for the successive adoptions in the 19th century, in 1684, in 1724 and 1857, and more recently about a quarter of a century back. (Vide foot-note at page 981 in Mayne's Hindu Law and Usage).

8. Sundara Ayyar in his treaties on Malabar and Aliyasanthana Laws, 1922 Edition, observes at page 28:

As under the Hindu Law, adoption is a recognised means of recruiting the family under the Marumakkathayam and Aliyasanthana systems of Law. It seems, however, to be based entirely on secular motives and is akin to the Kritrima form of adoption which is in force in the Mithila country.

9. The learned author states at page 31:

On adoption, the adoptee acquires all the rights of the natural born members of the tarwad, so much so that if the adopter is a female, she immediately loses her right of management in favour of the male adoptee. The seniority would depend on the age of each member and not on the date of adoption. As to whether as a rule the persons adopted lose their rights in their natural family or only gain rights in the family into which they are adopted Without losing any of those rights has not yet been finally decided.

10. In Shekara Piskarodi v. Secretary of State (1893) 3 M.L.J. 242 which appeals to be the earliest reported decision on the subject relating to Pisharodis, the Court held that the custom alleged amongst that community to the effect that notwithstanding an adoption the adoptee retains his rights in the natural family was not made out. In Second Appeal No. 1585 of 1894 (referred to in Sundara Ayyar's book at page 31) the District Judge of South Ganara sent down an issue to be tried by the Court of the first instances whether according to the rule of law and custom in Aliyanasanthana families if a woman is adopted she retains her old rights or loses them ' and it was found on the evidence in that case that the adoption did not sever the status and that as understood by all the parties, the adoption conferred on the adoptee a status in the new family in addition to that which she had at the time and not in supersession of it. In Second Appeal, in giving effect to this conclusion, Best and Subramania Ayyar, JJ., observed referring to the decision in Chanda v. Subba I.L.R. (1889) Mad. 209 that even under the Hindu Law there is the Kritrima form of adoption in which the adoptee retains the original form of status to which they likened the adoption in question. This decision was however based on the finding in that case, where it was proved that, notwithstanding. the adoption there was no severance from the natural family.

11. In Sundara Ayyar's book, at page 32, there is reference to the Full Bench decision of the Travancore High Court in Velayudhan Eswaran v. Ramaswami Ayyar (1890) 7 Trav. H.C.R. 66 where it was held that

where one or more only of the tarwad and not the entire family is adopted, the adoptees forfeit their rights in their natural family in the absence of special reservation to the contrary but if the adoption be of an entire family, the adoptees retain their full rights in their old family, while acquiring new rights in the adopter's tarwad.

12. The learned author observes that

the properties of the adoptees in each tarwad should be viewd as separate or self-acquired property so far as the other tarwad is concerned.

13. The judgment of Madhavan Nair, J., in Seetha Neithyar v. Kelti Menon : AIR1939Mad564 , though it relates to an adoption in a Marumakkathayam family may be usefully referred to, as the same principles govern ah adoption in the Aliyasantana system prevailing in the neighbouring district of South Kanara. It was held there that the form of adoption prevailing in Malabar amongst Nair community resembles the Kritrima form only in this, that the adoption is based purely on secular motives and it has no religious significance, but that there is no authority for the position that the adoptee in Malabar does not lose his or her rights of inheritance in the natural family, as in the Kritrima form of adoption recognised in the Mithila country and that, a custom to that effect, if set up, must be proved and each case will have to be decided on the evidence put before the Court. The learned Judge examined at length the statement in Moore's Malabar Law and Ramachandra Ayyar's Manual of Malabar Law that adoption by taking into the family for the purpose of perpetuating the family when it is in danger of becoming extinguished appears to be based on entirely secular motives and to be closely akin to the Kritrima form of adoption which is still in force in the Mithila country, and referred to the decision in Vasudevan v. Secretary of State for India I.L.R. (1889) Mad. 157, Chandu v. Subba I.L.R. 1889 Mad. 209 and Velayudan Eswaran v. Ramaswami Ayyar (1890) 7 T.H.C.R. 66, and observed at page 702 as follows:

When the text-writers say that the form of adoption resembles the kritrima form I think what they purport to emphasise mainly is this, that the adoption is based purely on secular motives and that it has no religious significance, and nothing more. As I have said, the law applicable to the case being essentially a customary law, the question can be decided only by having recourse to evidence as to custom in the absence of texts or express decisions of this Court.

14. The following observations of a Bench of this Court in Secretary of State for India Santaraja Shetty : (1913)25MLJ411 are relied upon:

Adoption in the case of persons governed by the Aliyasantana law is very different from adoption in the case of persons governed by the Hindu Law, in the former, the main, if not the only object of adoption is to nominate a person to succeed to the property. There is an absence of religious motive which must accompany a valid adoption governed by the Hindu Law. Hence it seems to us that in the case of persons governed by the Aliyasantana Law adoption is but slightly different from the nomination of a successor.

15. In that case the question arose whether the adoption of a male was valid according to Aliyasantana Law and custom and it was held that such an adoption was permitted.

16. The likening of adoption under the Aliyasantana system to that of Kritrima adoption does not mean that all the incidents of Kritrima adoption are attached to the customary adoption among those who are governed by the Aliyasantana system and that the adoptee retains the rights to his property in the natural family. As observed by Madhavan Nair, J., in Seetha Neithyar v. Kelu Menon : AIR1939Mad564 adoption being based on customary law, whether the adoptee retains his rights in the natural family has to be proved as in the case of the Nair family in Malabar, The very idea of adoption among those governed by' Hindu Law is that it is actuated by religious motives, the purpose being to continue the family and not allow the family to become extinct by the absence of a heir, the duty of a heir among Hindus being to offer libations to their ancestors. A childless Hindu has therefore recourse to adoption believing in the efficacy of having a son, who would not only continue the family name but also perform the shraddas and other ceremonies to him and other ancestors in the family. Adoption among Hindus is mainly acutuated by religious motives, though the secular notice is not altogether excluded. Primarily, therefore, adoption is inspired by religious motives though Courts are concerned with adoption only when the question of conflicting rights to property arises by reason of such adoption. It cannot be denied that the religious efficacy of sonship is the fundamental background for an adoption and, in the case of Marumakkattayam and Aliyasantana systems, where the efficacy of sonship as in those adopting the Mitakshara system is not material or relevant, the continuation of the family is the guiding factor for resorting to an adoption. The extinction of the family and the consequent failure of any members thereof not only to enjoy the properties belonging to the family but also to continue to perform the religious and devotional duties enjoined upon the members of the family which they had been traditionally performing furnish the reason for adoption in an Aliyasantana or Marumakattayam family. I have already referred to the footnote at page 981 in Mayne's Hindu Law and Usage, where it is pointed out how the ruling family of Travancore would have long ago, become extinct but for adoptions. It is not a question of property alone but the continuance of family, both for secular and religious purposes that motivates an adoption. The observations of text-writers and Courts that such an adoption is more like the Krittrima adoption does not mean that adoption under the Aliyasantana system is purely secular and has no religious significance nor any religious background but only based on purely material considerations.

17. In the present case on a reading of Exhibit B-1 it is seen that the anxiety of Bainki Banta was to continue the family not only for the purpose of enjoying its properties but also for the purpose of performing certain religious duties such as the performance of Daiva Devara Kamhala, Gorri, etc., and ranja pooja in the Peruvaje temple during Navarathri and other charities on the occasion. No religious ceremonies are, however, required to support such an adoption to an Aliyasantana family as in the case of Hindu twice-born, where datta homam or the giving or taking in the case of adoption generally among those who are governed by the Mitakshara system is a necessary ceremony. The religious motive for an adoption in either the Marumakkattayam or Aliyasantana family is not totally excluded. Being a customary form of adoption, the incidents of such an adoption and the legal effect on rights to property will have to be established by the custom prevailing in particular families governed by such systems.

18. In this case both the Courts found that the plaintiff has failed to establish a custom that adoption in the Aliyasantana family, at any rate in the family in question, was to retain rights in the natural family. It is for the plaintiff, who pleads that notwithstanding the adoption Kalamma retained her rights in the natural family, to prove satisfactorily the existence of such a custom. The lower Courts have found that the plaintiff has failed to so establish. In the result, the plaintiff, who is the descendant of Kalamma, must be held to have lost his right in the Katta family.

19. The concept of adoption is one derived under Hindu Law and the effect of adoption is that the adopted son occupies the same position and is entitled to the same rights and privileges as the son born in the family to which he is adopted, the principle of engrafting into the family of adoption depending upon a total severance of the adoptee from the family of his birth. If that is the theory of adoption, in the case of those who have recourse to adoption for continuing the family, not under any system of law but by custom as in the case under consideration, prima facie it must be held that the severance from the family of birth would also apply to such an adoption notwithstanding it is based on the customary law. It is reasonable to hold therefore that the rule in every case of adoption - whether the adoption is sanctioned by law or by custom and usage - is that it effects a severance from the family of birth, the adoptee becoming entitled to all the rights of the family to which she is adopted. If there is any custom contrary to the rule, then it is for those who rely on the custom to establish it. In the present case, the plaintiff has not proved the existence of such a custom. In the result, I am satisfied that the view taken by the lower Courts, that the plaintiff is not entitled to any rights of maintenance from the Katta family, is correct. In the view I am taking on this question, it is unnecessary to examine the question as to the bar of res judicata.

20. The result is, the appeal fails and is dismissed with costs. No leave.


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