SOLAIMALI KONE Vs. SOKKAMMAL

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff as the adopted son of one Ayyanna Kone for the recovery of possession of the plaint-mentioned properties. Ayyanna Kone died on January 7, 1920, without leaving any male issue. The lands owned by him at the time of his death were about 34 acres in extent. Solai Achi, who was his first wife, predeceased him leaving a daughter Chokkammal who is the 1 defendant in this suit. The second wife Seruvakkal had a daughter who died a few months after the death of Ayyanna Kone. While Seruvakkal was alive, Ayyanna Kone married a third wife Vellammal who is the 2nd defendant in this suit and who has no issue. After the death of Ayyanna Kone, his co-widows, viz., Seruvakkal and the 2nd defendant, fell out with the result that a suit for partition was filed by the 2nd defendant against Seruvakkal (O.S. No. 415 of 1920 in the District Munsifs Court, Melur). During the pendency of that suit a release deed was executed by the 2nd defendant in favour of Seruvakkal on November 1, 1922, relinquishing her half share in her husband's estate in favour of her co-widow in consideration of the receipt of Ks. 10,000 (Ex. I). The aforesaid suit was allowed to be dismissed for default. The present plaintiff who is a minor is the son of Ezhumalai Kone, one of the two brothers of Ayyanna Kone the other brother being one Veerabhadra Kone. According to the case set out in the plaint, the plaintiff, while he was a young boy, was brought up in the house of Ayyana Kone with a view to adopt him in case he had no male issue. In conformity with the intention of Ayyanna Kone shown by his conduct during his life-time and for the perpetuation of the lineage of Ayyanna Kone, the plaintiff was adopted to him by the 2nd defendant who was his only surviving widow, with, the consent of the nearest agnate, Ezhumalai Kone, who is also the natural father of the plaintiff and other relations. The other brother Veerabhadra Kone died in 1933 long before the adoption. It is alleged that the adoption was made on December 9, 1928, with all the formalities required by law and is also evidenced by the registered deed of adoption (Ex. C) executed by the 2nd defendant and Ezhumalai Kone. On the basis of his right as the adopted son of Ayyanna Kone, the plaintiff seeks to recover possession of the suit properties. The 1 defendant is the main contesting defendant. The 3 defendant as an alienee of some of the items in question is opposing the plaintiff's claim almost on the same grounds as those set up by the 1st defendant. One of the contentions is that by reason of the relinquishment as per the release deed executed by the 2nd defendant she has surrendered her entire interest in the estate in favour of the senior widow and the lineal descendants of Ayyanna Kone and therefore her power to adopt was at an end. Another contention is that even if the alleged adoption is true, it is not valid in law as the alleged consent of the plaintiff's father was influenced by no bona fide, desire to administer to the spiritual needs of the deceased Ayyanna Kone or to perpetuate his line, but by the dishonest and correct idea of sharing amongst themselves the properties of Ayyanna Kone that had descended to the 1 defendant and her own sons. As many as eleven issues have been framed in this suit. The learned Subordinate Judge chose to give his findings on the questions relating to the truth and validity of the adoption and dismissed the suit as a result of his findings on those points, without deciding the points involved in the other issues. He held the adoption to be true but found it to be not valid. We are constrained to express dissatisfaction at the manner in which the learned Subordinate Judge has written his judgment, and suffice it to say, that a major portion of it is a mere reproduction of the evidence given by each witness, in an ill-assorted, unanalytical and confused manner, from which little help could be derived for understanding the nature of his reasoning and his mode of appreciation of the evidence.

(2.) There is ample proof in support of the fact of adoption. The circumstances in which this adoption came to be made are set out in the registered deed (Ex. C) executed by the 2nd defendant as the adoptive mother, and the plaintiff's natural father Ezhumalai Kone (P.W. No. 6), the giver of the boy in adoption. Plaintiff's Witnesses Nos. 1 and 2 are some of the numerous attestors in this deed, while P.W. No. 3 is the writer thereof. It is proved to have been attested by Ramaswami Kone a brother of the 2nd defendant. It is also attested by Venkatachalapathi Kone, a relation of the 2nd defendant and the next friend of the plaintiff (P.W. No. 5). Plaintiff's Witness No. 4 who is the photographer that took a group photo at the time of the adoption (Ex. B) is also an attestor to the adoption deed. It is further proved that Thannan Kone, one of the two sons of Veerabhadra Kone, is the first attestor in Ex. C. There is evidence to show that both the sons of Veerabhadra Kone were present at the ceremony of adoption, but the other son declined to attest the adoption deed at the instigation of his mother. Two distant gnatis have also attested this deed. Not only is the truth of the adoption proved beyond doubt, but the celebration of the ceremony with due publicity is also clearly made out. No serious attempt has been made on the respondents side to impeach the correctness of the finding as regards the factum of adoption.

(3.) The real point of controversy upon which elaborate arguments have been addressed is the question of its validity. The lower Court is of opinion that the 2nd defendant by executing the release deed (Ex. I) brought about her self-effacement, and therefore was not competent to take the plaintiff in adoption. Its misconception of effect of the release deed is apparent. As already observed this deed was executed by the 2nd defendant during the pendency of her suit for partition against her co-widow Seruvakkal. On a perusal of the terms of this deed, it is clear that she alienated her half share in her husband's estate to her co-widow in consideration of having received a sum of Rs. 10,000 for the purpose of discharging her debts and for the purpose of purchasing some lands for her maintenance and providing herself with a house to live in. It is recited that the 2nd defendant would not question any of the dispositions of property which Seruvakkal might choose to make, and that if she should predecease the 2nd defendant without making any arrangements with respect to her property, it should so to her senior co-widow's daughter Chokkammal (1 defendant) and her sons, who were then minors, according to Hindu Law and usage. The effect of these stipulations is nothing more than the giving up by the 2nd defendant of her right to claim the properties of the co-widow, in case the latter should predecease the former. This is virtually a case of partition between the two co-widows, one of them taking a money compensation for her half share and giving up her right to take the co-widow's property by survivorship. This is certainly not a case of what in law is deemed to be a surrender by a widow of the entire estate of her husband in favour of the next presumptive reversioner, thereby accelerating the reversion and bringing about her civil death. As per the terms of Ex. I, the relinquishment by the 2nd defendant of her half share was not given in favour of any reversioner but in favour of her co- widow. That co-widow also did not surrender her estate during her life-time in favour of the 1 defendant, the next reversioner. It was only after the death of Seruvakkal without making any disposition of the property that the 1 defendant got into possession. In the case of a valid surrender by the widow to next reversioner according to Hindu Law, one who was subsequently adopted by the widow is not entitled to question the surrender and recover possession of the property. Vide the decision of the Bombay High Court in Rama Nana v. Dhondi Murari 76 Ind. Cas. 607 : A.I.R. 1923 Bom. 432 : 47 B. 678 : 25 Bom. L.R. 361. Even that case proceeded on the footing that the adoption was valid, and no contention was raised that by reason of the surrender the widow's power to adopt came to an end. It may be that by reason of the 2nd defendant having given up her right of survivorship as per the terms of the release deed (Ex-1), the estate of Seruvakkal devolved on her death upon the 1 defendant as her heir though her co-widow (2nd defendant) is still alive. It may be argued that the subsequent adoption of the plaintiff by the 2nd defendant is not valid because it will have the effect of divesting the estate which had already vested in a third party, viz., the 1 defendant. A similar question has been recently considered by their Lordships of the Privy Council in a decision reported as Amarendra Man Singh V/s. Sanatan Singh . After a review of the authorities the opinion expressed by their Lordships is as follows: It necessarily follows, their Lordships think, from this decision that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another coparcener of the joint family or an outsider claiming by reverter, or their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. If in Partap Singh Shiv Singh V/s. Agarsingh 50 Ind. Cas. 457 : A.I.R. 1918 P.C. 192 : 46 I.A. 97 : 432 B. 778 : 36 M.L.J. 511 : 17 A.L.J. 522 : 21 Bom. L.R. 49 : 1 U.P.L.R. (P.C.)39 : (1919) M.W.N. 313 : 120 L.W. 339 : 21 C.W.N. 57 : 27 M.L.T. 47 (P.C.) the actual reverter of the property to the head of the family did not bring the power to an end it would be impossible to hold in the present case that the passing by inheritance to a distant relation could have that effect any more than the passing by survivorship would be in a joint family.