SUBBAMMA AND ANR Vs. ADIMOORTHEPPA AND ORS

JUDGEMENT

(1.) The plaintiff filed this suit for the purpose of getting a declaration that the adoption made by the 1st defendant of the 2nd defendant is invalid. That the form of adoption was gone through was found by the lower Courts. The 1st defendant alleged that she had the authority of her deceased husband to make an adoption and this was found against, both by the District Munsif and the Subordinate Judge and it is a question of fact and I cannot interfere with this finding in Second appeal.

(2.) The appeal may be disposed of shortly. The plaintiff and defendants 3 to 6 were the nearest reversionary heirs to the estate of the last male holder. Defendants 4 to 6 gave their consent to the adoption. The plaintiff and the 3rd defendant were not consulted and they did not give their consent. The question arises, in these circumstances, what is the effect of the adoption made by the 1st defendant

(3.) It was held in Venkamma v. Subramaniam (1907) 30 Mad. 50 that failure to consult one of the two nearest kinsmen rendered the adoption invalid. This case was referred to with approval by the Judicial Committee in a more recent case Kristnayya v. Lakshmipathi A.I.R. 1920 P.C. 4. This is what their Lordships say in that case : "It must, however, be added that save in exceptional cases, such as those mentioned above, the consent of the nearest supindas must be asked and if it is not asked it is no excuse to say that they would certainly have refused." It has not been suggested that the present case comes within the exception referred to in the judgment of the Judicial Committee. In Venkamma v. Subramaniam (1907) 30 Mad. 50 their Lordships put the matter thus : "In their Lordships judgment, the appellants have failed to justify the widow in omitting to ask for the authority of a person holding so important a position in the family as did the 1st respondent. She defends herself, by saying that she knew he would refuse, but she is not entitled to say so, and to consult him was essential to her obtaining the mind of the kinsman on this family question".