- (1.) THE first defendant whose adoption has been declared invalid by the Sub -Court, Tiruchirapalli, is the appellant before us. The following pedigree explains the relationship between the parties: _______________________________________________________ | | Ramaswami Bhattar Kuppa Bhattar=Srirangaminal | | adopted Rangaraju ______________________ Bhattar (died on 5.3.42) | | | Krishna Bhattar Ponnam mal Ramaswami Bhattar (born on 3.12.1887, (2nd d eft.) (Plaintiff) died on 6.6.1901) married Rukmini Ammal (died on 17.4.1940) alleged to have adopted | minor Aravamndum -1st defenda nt Ramaswami Bhattar and Kuppa Bhattar were two brothers. The plaintiff is the grandson of Ramaswami Bhattar. The plaintiff's father Rangaraja Bhattar died on the 5th March 1942. Kuppa Bhattar had a son Krishna Bhattar and a daughter Ponnammal, the second defendant. Krishna Bhattar was married to Rukmani Ammal. Krishna Bhattar was born on the 3rd December 1887 but died on 6th June 1901. On the dale on which he died, he executed what purports to be a will but what was in fact an authority to adopt, a registration copy of which has been marked as Ex. P. 3 in the case. At the time of his death, Krishna Bhattar was below 14 years of age. The will was presented for registration after his death by Srirangammal, his mother, on 6th August 1901. There was an elaborate enquiry after due notice to the parties by the Sub -Registrar, who however, by his order dated 30th October 1901, refused to register it. There was an appeal to the District Registrar, and on 22 -2 -1902, he directed registration of the will as a result of a compromise between the parties. On the 18th March 1940 by Ex. D. 5, there was an attempt to settle the dispute between Rangaraja Bhattar and Rukmani Ammal, and on that date, an unregistered family settlement deed was executed. It is common ground that the terms of that settlement however were not carried into effect and the settlement did not become effective. On the 22nd March 1940, Rukmani Ammal adopted the first defendant, purporting to act on the authority conferred on her by her husband under the will Ex. P. 3. She in her turn executed a will on 12 -4 -1940. She died on 17 -4 -1840. The father of the plaintiff was alive for about two years and the present suit was instituted by the plaintiff for a declaration that the adoption of the first defendant by Rukmani Ammal was invalid and never in fact took place.
(2.) IN the Court below the genuineness of Ex. P. 3 was disputed and it was also contended that Krishna Bhatter was not in a sound disposing state of mind at the time of the execution of the deed on 6th June 1901. The factum of adoption was also denied. The main question however, on which the controversy centred was about the validity of the authority conferred by Krishna Bhattar at the time when he was below 14 years of age. The learned Subordinate Judge found that the factum of adoption was established, and that Krishna Bhattar executed Ex. P. 3, with a full knowledge of its conents, and that it was genuine. He, however, declared the adoption invalid on the ground that Krishna Bhattar was a minor and was not competent to confer an authority to adopt on his widow. An attempt was made on behalf of the appellant in the Court below to support the adoption on the ground that Rangaraja, as the nearest sapinda then alive, consented to the adoption; but this attempt failed. In this appeal by the first defendant, the main question argued by Mr. T. M. Krishnaswami Aiyar, his learned Advocate, was that the authority conferred by Krishna Bhattar was valid. He made a faint attempt to support the adoption also on the ground that irrespective of the authority of Krishna Bhattar, the adoption was on that (?) ground valid. The respondents did not challenge before us the findings of fact which were against them. The argument, therefore, proceeded on the ground that the findings of fact of the lower Court regarding the genuineness of Ex. P. 3 and the factum of adoption are correct.
(3.) WE may dispose of the contention that Rangaraja consented to the adoption first as it does not present any difficulty. The unregistered family settlement deed, Ex. D. 5, dated I8th March 1940, was relied on in support of me contention. That document sets out the previous disputes regarding the will and that Rangaraja agreed not to dispute the will In consideration of Rukmani Ammal giving Him property worth Rs. 4,000 out of the properties of Krishna Bhattar. In consideration of that Rangaraja promised not to put forth "any claim to the other movable and immovable properties belonging to the said Krishna Bhattar" and consented : "that the 2nd individual shall take all the steps necessary for the propagation of her family in accordance with the terms of the will left by Krishna Bhattar and that he would also be present and assist in the accomplishment of that object." It is common ground that the terms of this family settlement were not carried out; but ft was contended that the passage above extracted amounts to an independent consent on the part of Rangaraja to the adoption. It is impossible to accept this contention. All that Rangaraja agreed to do under that clause was that he would help the lady in carrying out the terms of the will of Krishna Bhattar by taking all necessary steps for the propagation of the family and to accomplish that object. There is no language suggesting that Rangaraja intended to assent to the adoption independently of the existence of the authority contained in the will of Krishna Bhattar. It has now been authoritatively established that the assent of a sapinda to an adoption should be one given by him in the exercise of an independent judgment irrespective of the question whether or not the widow had also authority to adopt from her husband. The reason for this is obvious. As has been pointed out repeatedly by the Judicial Committee, the sapinda has to decide for the widow the propriety and the expediency of introducing an heir to the deceased husband. Where a sapinda gave his assent believing that the husband also gave an authority to adopt, it was held that such an assent was not valid to support an adoption; See 'Sri Virada Pratapa Deo v. Brozo Kishoro', 1 Mad 69 (PC), 'Ganesa Ratnam Iyer v. Gopalaratnam Iyer', 2 Mad 270 (PC); 'Venkamma v. Subramaniam', 30 Mad 50 (PC); affirming 'Subramaniam v. Venkamma', 26 Mad 627. It is impossible to infer from the language of Ex. D. 5 that there was an independent assent of Rangaraja to the adoption of the first defendant by Rukmant Ammal. We have no hesitation therefore in rejecting this connection. ;