TAHSIL NAIDU Vs. KULLA NAIDU

JUDGEMENT

(1.) This appeal arises out of a suit for partition instituted by the two appellants claiming a share in the joint Hindu family property as successors-in-interest of one Kothandaraman alias KumarasamiNaidu who died in the year 1943. When Kothandaraman died, he, his father Rangappa Naidu, his uncle Ramasami Naidu, and the latter's son Kullan alias Kumaraswami formed a joint Hindu family. Kothandaraman died leaving his widow Nagarathinammal who was plaintiff No. 2 and is appellant No. 2 in this appeal. His father Rangappa Naidu was also alive, but he died in the year 1944. On the death of Rangappa Naidu, Ramasami Naidu, his brother, became the 'karta' of the joint family which included his son, Kullan alias Kumaraswami and plaintiff No. 2, the widow of Kothandaraman. Ramasami Naidu executed a will on 11th July, 1949 bequeathing portions of the joint family properties to various members of the family, because he was in actual possession of all the properties. Subsequently, in the same year 1949, Ramasami Naidu died. Some of the properties were transferred by persons who took possession of the properties in accordance with the will of Ramasami Naidu. Then, according to the plaintiff No. 2, she on 26th January 1955, adopted plaintiff No. 1, Tahsil Naidu, as a son and partition of the property was claimed on the basis that, after his adoption, Tahsil Naidu was entitled to a half share in the properties of the joint family. It was further urged that the will made by Ramasami Naidu was void and ineffective, and that the various transfers of the properties were also not binding on him. The suit was instituted by the two plaintiffs because defendant No. 1 kullan alias Kumaraswami Naidu, who was under the guardianship of his mother Jayammal, defendant No. 2, refused to recognise the adoption, challenged its validity and did not accede to the request to give a share in the property to the plaintiffs. The main question that arose in the suit for decision was whether the adoption of plaintiff No.1 by plaintiff No. 2 was valid.

(2.) It was the admitted case of the parties that Kothandaraman had died without giving any authority to his wife Nagarathinammal to adopt a son. The claim on behalf of the plaintiffs was that, even in the absence of authority from her husband, plaintiff No. 2 was entitled to adopt a son after obtaining the consent of the nearest sapindas of her husband. The case put forward was that she gave a notice to Jayammal and Kullan minor to give their consent to the adoption of plaintiff No. 1 who was the son of Damodaran, brother of plaintiff No. 2, and who was further the son of the real sister of Kothandaraman. However, without waiting for any consent being given by Jayammal, plaintiff No. 2 proceeded with the adoption after obtaining consent of the next three nearest Sapindas, Rangappa Naidu, Devarajalu and Umavadan alias Rangan. Though, at the first stage, there was some dispute about the pedigree, by the time the case came up before the High Court the pedigree, which was set up on behalf of the appellants in the plaint, was accepted as correct. According to that pedigree, when Kothandaraman died, and even when the adoption took place, his grandmother Ammakutti Ammal was also alive. She, in fact, died after the institution of the suit. Apart from her, Kullan and Jayammal, the nearest Sapindas of Kothandaraman at the time of adoption were Rangappa Naidu, Devarajalu and Umavadan. The plaintiffs, therefore, claimed that the adoption was made with their consent as, under the Hindu Law applicable in Madras, it was not necessary to obtain the consent either of the minor Kullan, or of the two females Jayammal, widow of Ramasami Naidu, and Ammakutti Ammal, grandmother of Kothandaraman.

(3.) The suit was resisted on behalf of the defendants challenging the validity of the adoption on two grounds. The first ground was that, in fact, the consent to the adoption was not obtained from Rangappa, Devarajalu and Umavadan as pleaded on behalf of the plaintiffs and, in any case, if the consent was obtained, it was not properly given by these Sapindas after exercising their independent judgment as required, so that the consent could not validate the adoption. The second ground was that, admittedly, Ammakutti Ammal, the grandmother of Kothandaraman, was also a sapinda and nearer in degree to the three persons consulted. Since her consent was never obtained, the adoption must be held to have been resorted to without the consent of the nearest sapinda and was consequently, invalid.