BALASUBRAHMANYA PANDYA THALAIVAR Vs. M SUBBAYYA TEVAR

JUDGEMENT

(1.) In these consolidated appeals the main question to be decided is as to the right of succession to the Uttumalai Estate situated in the Tinnevelly District of the Madras Presidency. There are now three claimants each of whom filed separate suits in assertion of his claim and has appeared by counsel before the Board in support of it. They are respectively : (1) Navanithakrishna Marudappa Tevar who claimed by adoption to the father of the last male holder. He will be referred to for convenience as the "adopted son"; (2) Subbayya Tevar, and (3) Balasubrahmanya, each of these last-mentioned denying the validity of the adoption and claiming to be the nearest sapinda of the last male holder. There were other claimants in the Indian Courts and other parties to the suits, but none of them have appeared before the Board and they may be disregarded for the purpose of these appeals.

(2.) The following pedigree sets out the position of the respective parties: Navanitha II, the last male owner, was duly adopted by Irrudalaya and his second wife Minakshi to the exclusion of the first wife Annapurni, and after his death his adoptive mother Minakshi (hereinafter for convenience referred to as the "Rani") was held entitled to succeed for a Hindu widows' estate : see Annapurni Nachiar V/s. Forbes, (1900) 23 Mad 1. In 1901 she handed over the management of the Uttumalai Estate to the Court of Wards, who remained in possession until her death in 1921, when the disputed succession opened. On 28 January 1920, the Rani purported to adopt Navanitha III. She also made certain testamentary dispositions in his favour which are disputed by the other claimants and which will be considered by their Lordships in a later part of this judgment. As regards the main question, the succession to the estate, it is obvious that if the adoption of Navanitha III is valid, no other question will arise. Their Lordships will therefore proceed in the first instance to deal with his claim. The factum of the adoption, though at first in dispute, is now admitted, but under the interpretation of the Mitakshara law as generally accepted in the Madras Presidency, and by which the parties are governed, it would only be valid if made under the authority of the lady's husband, or failing that, with the assent of his kinsmen. In the present case, the express authority of the husband was alleged, but it has been negatived by both Courts in India, and in accordance with the established practice of the Board, these concurrent findings on what is a pure question of fact must be held conclusive. It was however contended in the Indian Courts that in the circumstances of this case an implied authority should be inferred. The argument was that the association by Irrudalaya of the Rani with himself in the adoption of Navanitha II (the last male holder) which put her in the position of his adoptive mother, necessarily implied authority to make a second adoption if the first boy died (as he did) in infancy. This contention was repelled by the Indian Courts. Both the District Judge by whom the suits were tried and the High Court on appeal held that the mere association of one wife in an adoption by the husband was no indication of an authority to her to make a second adoption. They therefore held that the adoption of Navanitha III was without authority.

(3.) There is nothing to show that the husband ever contemplated a second adoption or that he was prepared to leave the selection of another boy to his wife. Their Lordships are not laying down that the requisite authority must necessarily be express, but they agree with the District Judge that "in order to constitute an implied authority there must be circumstantial evidence of a cogent character", and they are satisfied that no such evidence was forthcoming in the present case. Whether a particular intention can be inferred from a particular set of circumstances is, their Lordships think, rather a question of fact than of law, and on this question the Courts in India have concurred in their findings. But apart from this, their Lordships see no reason to differ from the conclusion at which they arrived. A further question was debated in the Indian Courts as to the necessity of the consent of the Court of Wards to the adoption, but having regard to what has been said above, it is not now material to discuss it. No assent of kinsmen is alleged, but in the plaint a somewhat novel point was taken, that there being no agnates of Irrudalaya in existence at the time of the adoption, whose assent could be sought, the lady had an inherent authority to adopt of her own volition. An issue was raised as to this in the trial Court, but the contention was subsequently abandoned. It found no place in the argument before the High Court and is not referred to in the printed case filed on behalf of the adopted son before the Board, but the contention is sought to be revived before it by his counsel. Their Lordships would not be prepared to hold on the authorities that the only kinsmen whose assent need be sought are the agnates, nor is there any evidence as to what sapindas of Irrudalaya were in existence at the date of the Rani's adoption. Their Lordships think moreover that it would be equally difficult for them to hold that under the Madras law there would be any residuary power in the widow to adopt in the absence of sapindas, but the contention was so clearly abandoned in India that it is not necessary to consider it further.