CHELLATHAMMAL ALIAS AMMAMUTHUAMMAL Vs. KALITHEERTHA PILLAI

JUDGEMENT

(1.) The question in this appeal is one of Hindu law and there is no authority which has direct bearing upon it. The question is whether the widow of a member of a joint family can adopt a son to her deceased husband with the assent of the nearest divided sapindas when the only surviving coparcener is insane. It is well-settled law in this Presidency that a widow who has not been authorised by her husband to adopt a son to him cannot do so unless she has received the assent of his nearest sapindas, and that she can lawfully adopt with the assent of the remoter reversioners if the nearest reversioners improperly withhold their assent. It has never been decided whether she can go outside the family when there are no joint sapindas capable of advising her, or, if there are they refuse their assent on improper grounds.

(2.) On the 6 January, 1926, one Sethuramalingam Pillai died leaving two widows and a daughter, the first, second and third defendants respectively. Sethuramalingam Pillai was joint with his brother, Kalitheertha Pillai, the plaintiff. They were the only coparceners. In 1926 Kalitheertha Pillai became insane and remained insane until the year 1931. On the 11th December, 1930, the widows adopted the fourth defendant. The nearest sapindas of Sethuramalingam Pillai outside the family were six in number. Two of them gave their assent to the adoption, but four of them refused their assent on the ground that Kalitheertha Pillai was sane. On the 28 July, 1933, Kalitheertha Pillai instituted a suit in the Court of the Subordinate Judge of Tinnevelly in which he challenged the validity of the adoption and asked for a decree for possession of the family estate. The Subordinate Judge held that the plaintiff was insane when the adoption was made and that the widow was entitled to make the adoption with the assent of two of the sapindas, inasmuch as the other four had improperly withheld their assent. Consequently he declared that the fourth defendant was entitled to a moiety of the properties. On appeal the District Judge of Tinnevelly agreed with the Subordinate Judge. The plaintiff then appealed to this Court and the appeal was heard by Somayya, J., who held that in the case of a joint family a widow is not entitled to seek the advice of divided sapindas and therefore is not in a position to make an adoption. The learned Judge having given the requisite certificate defendants 1 to 4 have preferred this appeal under the provisions of Clause 15 of the Letters Patent.

(3.) The learned advocate for the appellant has taken the preliminary objection that the assent of two of the six sapindas was not sufficient, but on this question Somayya, J., agreed with the judgments below and I consider that he was right in so doing. Where a sapinda improperly withholds his assent it may be ignored. It is not a question of a majority assenting, but whether those dissenting, if they form the majority have dissented from improper motives. See Subrahmanya V/s. Venkamma and Venkatakrisnamma V/s. Annapurnamma (1899) 10 M.L.J. 73 : I.L.R. 23 Mad. 486. The finding of the District Judge that he was insane at the time of the adoption cannot be challenged in this Court and as the four sapindas refused their assent on the basis of the untrue allegation that he was sane their refusal can only be regarded as being improper.