KANDASWAMY GOUNDER Vs. CHINNAMMAL

JUDGEMENT

(1.) The plaintiff is the appellant. This appeal arises out of a suit instituted by the plaintiff for a declaration that he is the adopted son of one Muthu Goundan of Siluvampatti and as such is entitled to recover the suit properties from the defendants together with mesne profits. Defendant No. 1 is the second daughter of the deceased Muthu Goundan and defendants Nos. 2 and 3 are his other daughters. Defendant No. 4 is the husband of the first daughter. Defendants Nos. 5 to 7 are persons who are in possession of some of the items of the property. Muthu Goundan died in the mon March, 1920, and as March 11, 1921, his widow, Kaliammal, P.W. No. 1. adopted the plaintiff, the son of Muthu Goundan's brother, P.W. No. 2. The plaint alleged that Muthu Goundan, before his death, had authorized his widow to adopt and that she took the plaintiff in adoption with the consent of the sapindas. The daughters who are defendants contested the adoption and said it was brought about at the instigation of P.W. No, 2 and that their mother who was not on good terms with them adopted the plaintiff with a view to spite them and deprive them of their inheritance. Defendant No. 1 also put forward a will by which the deceased Muethu Goundan left the properties after his death to be enjoyed by her with directions to maintain his widow, etc. The two main questions in the case are: (1) whether the adoption set up in the plaint is true and valid, and 1 M. 174 : 4 I.A.I. : 26 W.R. 21 : 3 Sar, 669 : 1 Ind. Jur. 63 : 3 Sar P.C.J. 353 (P.C.). whether the will set up by the defendants is true and valid (issues Nos. 1 and 2).

(2.) The factum of adoption is not disputed. It is also not disputed that though the plaintiff stated in the plaint that all the sapindas were consulted, the only sapinda who was consulted is the adopted boy's father, P.W. No. 2 the nearest sapinda. The learned District Judge found that the authority said to have been given by the deceased husband to adopt was not proved and that the circumstances show that the motive of P.W. No. 2 in consenting to the adoption was to secure advantage for himself and of the widow in making the adoption was to defeat the rights of Muthu Goundan's daughters. Holding these motives to be "capricious and corrupt" he held that the adoption was invalid in law and that the plaintiff is not entitled to recover possession of any portion of the properties. He also found that the "will" set up by defendant No. 1 was not proved. As the adoption was found to be invalid, the plaintiff's suit was dismissed. Against the decree dismissing the suit the plaintiff has filed this appeal and defendant No. 1 has filed a memorandum of cross-objections in which she contends that the will set up by the defendants is true and valid and that the order disallowing casts is wrong.

(3.) The law is well settled that in the absence of authority by the husband to adopt, the consent, of the nearest sapinda will be enough to uphold an adoption. If the consent of the sapinda was obtained under circumstances which show that he gave the consent with a view to benefit himself or if the facts show that the widow was making the adoption to defeat the interest of this or that sapinda, and not to promote the spiritual welfare of her husband, then the motives of the parties are said to be "corrupt and capricious" and the adoption will be invalid for that reason. This may be said to represent the state of the law in this Presidency: See Collector of Madura V/s. Moothoo Ramalinga Sethupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : L.B.L.R.P.C. 1 : 2 Such P.C.J. 135 : 3 Sar. P.C.J. 33 : 20 E.R. 339 : 3 Mad. Jur. 298 (P.C.); Velanki Venkata Krishna V/s. Rama Lakshmi L.M. 174 : 4 I.A.I. : 26 W.R. 21: 3 Sar. 669 : 1 Ind. Jur. 63:3 Sar P.C.J. 353 (P.C.) and Krishnayya Rao V/s. Raja of Pittapur 116 Ind Cas. 673 : A.I.R. 1928 Mad. 994 : 51 M. 893 : 28 L.W. 422 : 55 M.L.J. 894. The question is how far the adoption in this case is vitiated by "corrupt and capricious" motives.