KALITHEERTA PILLAI Vs. CHELLATHAMMAL ALIAS AMMAMUTHAMMAL

JUDGEMENT

(1.) This case raises a very important question whether the widow of a deceased member of a Hindu joint family can make a valid adoption to her husband with the consent of the divided sapindas when there is only one coparcener alive who by reason of mental infirmity is not in a position to give or withhold his consent. Plaintiff had a brother Sethuramalingam Pillai who died on 6 January, 1926 leaving two widows, defendants 1 and 2 and a daughter the third defendant. At that time the father of the plaintiff and Sethuramalingam Pillai was alive and he died in July, 1926 leaving a widow the sixth defendant in the suit. Defendants 1 and 2 adopted the fourth defendant with the consent of certain divided sapindas of their husband on the 11 December, 1930. At that time, it is common ground that the plaintiff was suffering from some mental infirmity. Paragraph 8 of the plaint states that from the beginning of the year, 1926, the plaintiff was not in a sound state of mind and paragraph 10 states that since the beginning of the year 1931 the plaintiff completely recovered from the unsound state of mind from which he had been suffering for about five years. The trial Court (the Subordinate Judge of Tinnevelly) held that the plaintiff was from January, 1926 to January, 1931 so totally devoid of his Senses as to disqualify him from inheriting his father's properties. On appeal the District Judge confirmed the finding of the trial Court that the appellant was insane at the time of the adoption. The plaintiff being the only coparcener and his state of mind being such as has been found by both the lower Courts, the question is whether the adoption made by the defendants 1 and 2 with the consent of divided sapindas is valid in law. There were six divided sapindas and two of them gave their consent and the remaining four wrote refusing to give their consent. The six agnatic relations were of equal degree of relationship being the sons of the plaintiff's grandfather's brothers. The main reason given by the four reversioners for withholding their consent is, as stated in the replies, that the plaintiff was in proper senses and that therefore there was no necessity for an adoption. This has been found by both the lower Courts to be false and that at the time when their assent was sought, the plaintiff was actually insane. For this reason, both the lower Courts have held that the refusal by the four dissenting sapindas was actuated by improper motives. I have gone through the several replies and I agree with the lower Courts that the reasons given for withholding their consent are wholly improper. Thus, we are left with the consent of two persons whose consent is beyond any attack. On the authority of the decisions of this Court in Venhatakrishnamma V/s. Annapnrnamma (1899) 10 M.L.J. 73 : I.L.R. 23 Mad. 486 and Subrahmanyam V/s. Venkamma the adoption would be valid notwithstanding four out of the six sapindas of equal grade withholding their consent because their refusal was actuated by improper motives. In a case of this kind it is not a question of majority or minority. If the majority of the sapindas consent, then there will be a presumption in favour of the consent being bona fide. But where the majority refuse, it cannot be said that it is not open to the widow to prove that the refusal was actuated by improper motives. In Venkatakrishnamma V/s. Anna-purnanima (1899) 10. M.L.J. 73 : I.L.R. 23 Mad. 486 Subrahmania Aiyar, J., says this: It should, at the same time, be borne in mind that a mere numerical majority, whether in favour of or against an adoption, will not by itself determine the question. Adoption being a proper act it will be presumed that when the majority give their assent such assent was given on bona fide grounds. If, however, it be shown that the majority give or withhold their assent from improper considerations, such assent or dissent will be of no-avail to the party relying on it. In Subrahmanyam V/s. Venkamma Benson and Bhashyam Aiyangar, JJ., referred to the above observations with approval.

(2.) It is urged by the learned advocate for the appellant that a widow can make an adoption only if she gets the consent of the majority of the sapindas and where, as in this case, she has not been able to get the consent of the majority, the adoption is not valid. I do not agree with the contention. No decision has been brought to my notice which says that the consent of the majority of the sapindas is always essential for the validity of an adoption. I therefore hold that the adoption is not invalid on this ground.

(3.) The next and the most important question is whether defendants 1 and 2 were entitled to get the consent of the divided agnates for the reason that the plaintiff was at the time of the adoption mentally defective and not in a position to give or withhold his consent. It is urged for the appellant that the Judicial Committee has definitely laid down that in the case of joint families, the widow of a deceased coparcener must seek the requisite authority within that family. If the husband himself gave his authority, she might adopt. But if the husband did not give his authority and the widow has to get the consent of the sapindas, it is urged that it is only within the joint family that she must seek the requisite assent. Mr. Viswanatha Sastri urges that as the joint family continues even when one male member exists, a widow cannot make an adoption unless she gets the consent of that person and that if that person refuses his consent even though for improper treasons, she cannot travel, outside the joint family and seek the authority of divided sapindas. His next proposition is that even where the sole male member of the joint family is a lunatic or a minor, she has no right to travel outside the joint family and make an adoption with the consent of the divided sapindas. Collector of Madura V/s. Moottoo Ramalinga Sethupathi (1868) 12 M.I.A. 397 at pages 441 and 442 was a case of a divided family but the Judicial Committee stated the law as to the case of a joint family in the following terms: The question who are the kinsmen whose assent will supply the want of positive authority from the deceased husband, is the first to suggest itself. Where the husband's family is in the normal condition of a Hindu family . i.e., undivided--that question is of comparatively easy solution. In such a case, the widow, under the law of all the schools which admit this disputed power of adoption, takes no interest in her husband's share of the joint estate, except a right to maintenance. And though the father of the husband if alive, might, as the head of the family and the natural guardian of the widow, be competent by his sole assent to authorize an adoption by her, yet, if there be no father, the consent of all the brothers, who, in default of adoption, would take the husband's share, would probably be required, since it would be unjust to allow the widow to defeat their interest by introducing a new coparcener against their will.