APYA SHETTYA TALAWAR Vs. RAMMAKKA APYA TALAWAR

JUDGEMENT

(1.) THIS is a second appeal from a decree of the Assistant Judge of Belgaum. The dispute relates to the validity of the adoption of the defendant to the action. The suit was instituted by one Ramakka, a Holer or Shudra by caste, for a declaration that the defendant was not legally adopted on November 15, 1928, to her deceased son Shettya by the latter's widow Mallawa; and for confirmation of the plaintiff's possession of her son's estate owing to the remarriage of Mallawa. The validity of the adoption was questioned on two principal grounds: (1) that the defendant was born of an adulterous intercourse, his conception and birth having taken place long after his mother's husband's death, and (2) that the mother, although a Holer or Shudra, had given him in adoption after her remarriage. Both the Courts below have found, and the finding is not challenged before us, that the defendant was an offspring of adulterous intercourse and that he was given in adoption before his mother's remarriage. On account of the former defect the Courts; below have held that the adoption is invalid in law and accordingly the plaintiff's claim was allowed. The defendant has appealed against that decree and he maintains that that view of the law is erroneous.

(2.) THE question of the validity of the defendant's adoption has to be considered from different stand -points: first, the capacity of the adoptive parent to take in adoption; secondly, the capacity of the natural parent to give in adoption; and, thirdly, the capacity to be given or taken in adoption. As to the capacity of the adoptive parent there is no dispute. THE controversy centres round the last two points.

(3.) ACCORDING to the texts, if both the parents are alive, their concurrence seems to be necessary. Mitakshara, while explaining Yajnavalkya's definition of a Dattaka son (c. I, Section XI, 9), says: He, who is given by his mother under her husband's direction, when her husband is absent on a journey or is dead (after her husband's decease), or who is given by the father, or by both, to a person of the same class, becomes the adopted son Dattaka of him to whom he is given.