K S GOPALACHARIAR Vs. D KRISHNAMACHARIAR

JUDGEMENT

(1.) The suit out of which this appeal arises related to the properties of one Krishnaswami Iyengar, who died leaving a daughter Kanaga-thammal. Kanagathammal married Doraiswami lycngar. There was no issue of the marriage and the first defendant claimed to be her adopted son, he having been adopted by her husband Doraiswami Iyengar in 1920. The plaintiff claiming to be the reversioner of Krishnaswami lyengar, sought to recover the properties and contested the factum and validity of the adoption of the first defendant. That the adoption did take place both the Courts have found to be true and the validity of the adoption alone is sought to be attacked in this appeal. The invalidity is based on the rule of prohibition that no one can be adopted whose mother in her maiden state the adopter could not have legally married, the contention being that the first defendant's natural mother Rukmani Animal was within the prohibited degrees of marriage, as Rukmani Animal was Doraiswami Iyengar's paternal grandmother's sister's son's daughter. The parties being Brahmins the rule that a legal marriage should be possible between the adoptive father and the natural mother applied to the present case.

(2.) After the Full Bench decision in --'Minakshi v. Ramanada, 11 Mad 49 (FB) (A), and the Privy Council decision in -- 'Bhagwan Singh v. Bhagwan Singh', 21 All 412 (PC) (B), the rule derived from the Hindu law texts that there cannot be a valid adoption unless a legal marriage was possible between the natural mother of the boy and the adoptive father has been held to apply to the three regenerate classes among Hindus. But the rule is subject to exceptions, such exceptions being based on custom to the contrary. Even prior to the decision in 11 Mad 49 (FB) (A), in -' Vayidinada v. Appu' 9 Mad 44 (FB) (C), it was held that a custom existed in Southern India, among Brahmins of adopting a sister's son or daughter's son, though a sister or daughter is obviously within the prohibited degrees of marriage. In -- 'Simhadri Raju v. Satyanarayana Pantulu', AIR 1945 Mad 487 (D), the adoption of a hoy whose mother belonged to the same gotra as that of the adoptive father was held to be valid on the strength of custom permitting such an adoption in the community to which the parties there belonged, namely, Kshatriya community. Sir Lionel Leach C. J. observed as follows at p. 489:

(3.) Whatever may be the position as regards a mother's sister's son, the custom that has been found to exist among the Brahmin community to permit the adoption of a daughter's son has been extended to the case of a brother's daughter's son in -- 'Appayya Bhattar v. Vengu Bhattar', 15 Mad LJ 211 (E), where Subrahamania Ayyar and Benson JJ. referring to the decision in 9 Mad _44 (FB) (C), pointed out that though the decision in that case related to the validity of the adoption of a daughter's or sister's son, yet the case actually before the Court was that of a brother's daughter's son, and observed :