BODO ANNANDA PODHANO Vs. DONDO NAIKO

JUDGEMENT

(1.) These three second appeals arise out of three suits which have been tried analogously and are covered by a common judgment in each of the two courts below. The plaintiff, as well as defendants 2 to 6, are the same in all the three suits, but the 1st defendant is different in each. The plaintiff is the appellant before us, while the defendants are the respondents. The common plaintiff is the brother of one Satyananda Podhan, the last male-holder of the suit property. He left him surviving (apart from the plaintiff), his widow the 2nd defendant, and the widow of his only pre-deceased son, the 3rd defendant. Defendants 4, 5 and 6 are the daughters of the third defendant. Deft. 1 in each of the cases is an alienee from defendants 2 and 6 of certain items of properties of the last male-holder under sale deeds, Exts. C, D, and E dated consecutively 4th, 5th and 6th April 1941. The plaintiff as the next reversioner of the last male-holder has brought the suits for a declaration that these sale deeds are without any legal necessity and that they are not valid and binding upon him. The defence in all the three suits is two-fold, viz., (1) The sale deeds have been executed for legal necessity and are hence valid and binding on the reversioner; (2) Under the authority given by the last maleholder, viz., Satyananda Podhano, his daughter-in-law, the third defendant, duly and validly adopted one Gadadhar Podhano and that therefore the plaintiff has no locus standi to maintain the suit. The plaintiff in his turn challenged both the factum and validity of the adoption. Thus, the two questions raised in the case are as to (1) the adoption, and (2) the binding character of the alienations.

(2.) On the question of legal necessity for the three sale deeds, both the courts below have concurrently found that so far as Ext. E is concerned, there is no legal necessity at all, while so far as Ext. D is concerned, the legal necessity has been made out for about Rs. 715 out of the consideration of Rs. 750/- mentioned in the sale deed. In respect however of Ext. C, the trial court has held that necessity has been established only for a sum of about Rs. 385/- out of the total consideration of Rs. 765/- but the Appellate Court was inclined to think that the major portion of the consideration under the sale deed was for legal necessity. On the question of adoption, both the courts below have concurrently found that the adoption was true as a fact and valid in law. On the above conclusions, the suits have been dismissed by both the courts below and hence these three appeals by the plaintiff.

(3.) The question which has been very strenuously argued before us by learned counsel for the appellant is the one relating to adoption. He accepted the concurrent findings of the Courts below in favour of the factum of adoption, but challenged its correctness so far as the legal validity thereof is concerned. It is undisputed that the adoption has been made by D-3 after the death of her husband and after the death of her father-in-law the last male-holder. The validity of the adoption has been supported with reference to the deed of authority for adoption, Ext. K dated 6-2-40 executed by the father-in-law in favour of 3rd defendant sometime before his death. Learned counsel for the appellant urges that (1) the parties are governed by the Benares School of Law under which adoption by a widow cannot be supported excepting under the specific authority of the husband; (2) that, in any case, the authority of the father-in-law did not amount to the requisite consent of a sapinda which can validate the adoption under the Madras School of law relating to adoptions. The first point, though raised has been faintly argued and it is clear that it is untenable. The parties are Oriyas and belong to the Ganjam District which was a part of the Province of Madras prior to 1936. In respect of the Oriyas of the ex-Madras area, it has been assumed by the Privy Council as early as in 'RAGHUNADA DEO v. PATTA DEO', 1 Mad 69 at p. 78 that the Dravida School of law prevails. This assumption is based on the dicta of the Privy Council in the earlier leading decision viz., 'THE COLLECTOR OP MADURA v. MOOTTOO RAMALINGA SETHUPATHY', 12 Moo Ind App 397 at p. 433. In that case, their Lordships laid down relying on Sir Thomas Strange's "Hindu Law" Vol. I, p. 79, as follows: