SUBHA RAO, - (1.) THE following Judgment of the court was delivered by
(2.) THIS appeal on a certificate is preferred against the judgment and decree of the High court of Judicature at Madras confirming those of the Subordinate Judge, Madurai, in a suit for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid. The following genealogy will be helpful to appreciate the facts and the contentions of the parties: (See genealogy on page 189.) Shanmugha, Subramania and Kulandaivelu (Jr.) became divided in 1878 and since the division each of the three. branches of the family was living separately. Kulandaivelu (Jr.) died in the year 1912 possessed of considerable property described in the plaint schedule leaving him surviving his widow, Guruvammal Anni, who is the 1st defendant as his sole heir. In 1951, Guruvammal Anni, with a view to adopt the 2nd defendant to her deceased husband, wrote letters to her husband's sapindas who were majors i.e., plantiffs 1 and 2, and defendants 5, 11, 12, 14, 19 and 20, seeking their consent to her adopting the 2nd defendant. The said sapindas, except defendants 12 and 14, refused to give their consent for the reasons mentioned in their replies. Defendant 12 did not receive the letter, but the 14th defendant gave his consent to the adoption. On 25/05/1951, Guruvammal Anni adopted Kuandaivelu (Jr.), the 2nd defendant as a son to her late husband. On 30/05/1951, she executed Ex. A-1, the adoption deed, and registered the same on 12/06/1951. Chandarasekhara, the son of Subramania, and his son, Kanniappa, and three minor grandsons filed O. S, No. 156 of 1951 in the court of the Subordinate Judge, Madurai, for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid, void and of no effect. Defendant 3, is the natural father of defendant 2; defendants 4 to 21 are the other sapindas of 1st defendant's husband, being the descendants of Renganatha. The particulars of their relationship to Kulandaivelu will be seen from JUDGEMENT_185_AIR(SC)_1963Image1.jpg the aforesaid genealogy. It was, inter alia, alleged in the plaint that the adoption made by the 1st defendant of the 2nd defendant without the consent of the sapindas was bad and that the consent given by the 14th defendant was purchased and therefore would not validate it. Defendants 1, 2 and 3 filed written-statements supporting the adoption; they pleaded that the nearer sapindas improperly refused to give the consent, the adoption made on the basis of the consent given by the 14th defendant was valid. The learned Subordinate Judge, on a consideration of the evidence and the relevant law on the subject, came to the conclusion that the 12th defendant, though received the notice seeking his consent, returned the same, that the other sapindas, excluding defendant 14, improperly refused to give their consent to the adoption and that, therefore, the adoption made with the consent of defendant 14 was valid in law. The Subordinate Judge also rejected the contention of the plantiffs that the 14th defendant, having regard to his disbelief in the religious efficacy of adoption and the Hindu rituals,,was disqualified from giving his consent. In the result, he dismissed the suit. On appeal a division bench of the Madras High court, agreeing with the view of the learned Subordinate Judge, came to the conclusion that the sapindas were actuated by improper motives in refusing to give their consent. The second contention directed against the consent given by defendant 14 does not appear to have been seriously pressed before the High court. In the result the High court dismissed the appeal with costs. It may be mentioned that the 1st defendant, Guruvammal Anni died pending the suit and that the 1st plaintiff died after the appeal was disposed of by the High court. The other plaintiffs have preferred to present appeal against the judgment of the High court. The main question raised in this appeal in whether the refusal of the sapindas, other than defendant 14, to give consent to the adoption of the 2nd defendant by the last defendant was improper and, therefore, could be disregarded. Before we consider the legal aspects of the question raised, we shall briefly state the relevant facts, either admitted or concurrently found b the courts, below. Kulandaivelu, the last male holder, died on 29/01/1912, possessed of extensive, property. His widow, Guruvammal Anni, ,Was managing the said property through power of attorney agents. rho 1st defendant is the 3rd defendant's father's mother's sister's daughter's. The 3rd defendant was also helping the 1st defendant in respect of certain transactions during the management of her properties by one of her power of attorney agents. The 3rd defendant and his wife were living with the 1st defendant; and the second defendant was born in 1930 in the house of Guruvammal Anni. She was very much attached to him and as he grow up she also performed pujas in company with him. The 2nd defendant studied in the District Board High School, Sholavandan taking Sanskrit as his second language and was studying for B. A. (Hons.) degree in 1951 when hewas adopted.' In 1951 Guruvammal Anni was about 67 years old and wanted to take a boy in adoption who would not only discharge religious duties to her husband as his son and preserve the continuance of her husband's lineage, but would also be of great solace and help to her during the remaining years of her life. With that object, she issued notices to the sapindas of her husband intimating them of her intention to adopt the 2nd defendant, who, according to her, had all the necessary qualifications to fulfil the role of an adopted son. The boy proposed to be adopted by her was young healthy, educated, religious minded and devoted to her, having been born in her house and brought up by her.
(3.) IN April 1951, the 1st defendant sent letters Ex.A-1 to the 1st plaintiff, Ex.A-10 to the 2nd plaintiff, Ex.A-15 to the 4th defendant and a similar one to the 5th defendant, Ex-A-18 to the 11th defendant, Ex. B-3 to the 12th defendant. Ex. B-52 to the 14th defendant, Ex.A.21 to the 19th defendant, and Ex.A-25 to the 20th defendant, seeking for their consent to her adopting the 2nd defendant. As already stated, all the said persons excepting defendants 12 and 14, replied refusing to give their consent to the proposed adoption; the 12th defendant received the letter but returned it unopened, and the 14th defendant gave his consent. Ex. A-3 is the reply sent by the lot plaintiff. He has given various reasons for refusing to give his consent to the proposed adoption. As much of the argument turned upon the contents of this letter, we would briefly give the said reasons. They are: (1) the 1st defendant did not think fit to take a boy in adoption for many years though her husband died 38 years ago and that four years ago there was some talk about it, but, at the instance of the 1st plaintiff and other agnates, she, gave up the idea of making an adoption stating that she would not think of adopting a boy to her husband; (2) the present attempt to take a boy in adoption was at the instance of the 3rd defendant who was exercising considerable influence over her to take a boy in adoption aged about 20 years and who was not an agnate was opposed to the uniform and invariable custom prevailing in the community; and (4) there were eligible boys among his grandsons under the age of 7 years and among his cousin's great-grandsons under the age of 18 years and the parents of the said boys had no objection to give any one of them in adoption. He summarized,his objections in the following words: `I do strongly object to the adoption of Kulandaivelu,your agent's son; not only for the reason that he is aged and ineligible, but also for the reasons that he is not agnate and the proposed adoption is prompted by corrupt and selfish decision on the part of your agent. The proposed adoption has behind it the motive of defeating the legitimate reversionary interest of your husband's agnates and is absolutely wanting in good faith.` Ex. A-12 is the reply of the 2nd plaintiff, i.e., the son of the 1st plaintiff. He has practically repeated the objections found in his father's letter; while the father stated in his letter that there were eligible boys for adoption among his grandsons and great-grandsons of his cousin, the 2nd plaintiff only referred to his sons; he says in his letter: `Moreover if you really desire to take a boy in adoption I have got sons who are less than seven years old and who are fit for being taken in adoption. I have no objection whatever to give in adoption anyone of the aforesaid boys whom you like.` Ex.A-16 in the reply given by the 4th defendant. He has eligible boys, who are the great grandsons of the cousin of the 1st plaintiff and who can be given in adoption; these are some of the boys ,mentioned by the 1st plaintiff in his letter. He sets up the case that the 1st defendant's husband had adopted one Sankarlinga Mudaliar even when he was alive'. He refuses to give the consent on the ground that there was already an adoption. Ex. B-5 is the reply given by the 5th defendant and be only adopts the reasons given by his father, the 4th defendant. Ex A 1 9 is the reply given by the 11th defendant, who is the father of the 14th defendant. His reply is on the same lines as given by the 1st plaintiff. Ex.B-4 is the reply given by the 14th defendant; he gives his wholehearted consent to the adoption. He has four eligible sons, defendants 15 to 18, who could be given in adoption. Ex.A 22 is the reply of the 19th defendant and Ex.A-26 that of his son, the 20th defendant. The 19th defendant stated that he has grandsons aged less than 8 years and that the parents of the said boys have no objection to give any one of them in adoption. The 20th defendant offers one of his sons to be taken in adoption by the 1st defend ant.;