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Madras High Court
Narayanasami Naick, Minor, By … vs Mangammal And Ors. on 17 January, 1905
Equivalent citations: (1905) 15 MLJ 143


1. The plaintiff’s case was that his alleged adoptive father on his death-bed in February 1897 authorized the 1st and 2nd defendants, his widows, to adopt the plaintiff, and also by oral will bequeathed to him all his property. The ease found; proved by the District Judge is that in the following December in 1897 the 1st defendant, the senior widow adopted the plaintiff with the consent of all her late husband’s divided brothers, but that that adoption was invalid because, the junior widow, (the 2nd defendant) did not consent to it and took no part in it. The District Judge did not believe that portion of the plaintiff’s evidence which related to the death-bed disposition of his property by the deceased or to his having authorized his widows to adopt the plaintiff. In that conclusion we agree. It was not seriously contested in the appeal by the plaintiff which was confined more to the legal question whether on the. Judge’s finding of the factum of adoption in December 1897 by the senior widow it had not been erroneously held by the District Judge to be an invalid adoption. It was urged for the respondent-2nd defendant, the junior widow, that the District Judge’s finding of fact that there had been an adoption by the senior widow in December 1897 was wrong, and it will be more convenient to deal with this question, first, leaving the question of law for consideration afterwards. We have on a review of all the evidence come to a decided opinion that the adoption by the senior widow in December 1897 never took place. The whole story depends upon the words of a dozen interested witnesses unsupported by any circumstantial evidence, while it is contradicted by as many witnesses for the defence-no doubt interested too. But it is for the plaintiff to prove his case. His witnesses have been discredited in regard to the greater part of their story. The District Judge disbelieved them not only with reference to the death-bed events, but also with reference to the presence of the 2nd defendant at the alleged adoption and there is nothing tangible to corroborate that part Of their story which the District Judge has believed and which is not free from several improbabilities. If the senior widow hud received her husband’s authority to adopt, there was no necessity to get the consent of his sapindas and there was also no occasion for the extreme hurry and privacy with which it was made. No astrologer, no purohit, no official of the village, in short, no independent person was present and many relatives who ought to have been invited to the ceremony were not asked to attend it. It is true that some two months afterwards, in February 1898, the 1st defendant, the senior widow, announced to the Tahsildar that the adoption had been made but no details, not even the approximate date of it, were started in her petition. The alleged adoption was promptly denied by the 2nd defendant and when the 1st defendant was put to prove it she did not press it and eventually allowed the claim to be withdrawn giving as her reason for failing to urge it, ill-health. She had her own brother holding a general power of attorney from her and a vakil had also been engaged by her; either or both of whom could have proceeded with the case on her behalf. Her personal conduct of the matter was in no way required, so that her sickness was only a subterfuge for delaying to adduce her proofs. She ultimately left it for the natural father of the boy to institute this suit. Meantime she had executed several documents in which she made no reference to the adopted son but alleged that the property which should have been his, was her own and dealt with it as such. Lastly in the School Registers of the boy, made two years after the alleged adoption, the name of his natural father is entered as his “father or guardian” which could hardly have occurred if he had had an adoptive father. For all these reasons we must hold that the alleged adoption of the plaintiff did not in fact take place. In view of our finding that no adoption was in fact made, it is unnecessary to decide the question whether the adoption found by the District Judge was a valid adoption or not. As, however, the question was fully argued we may say that if it were necessary to decide the question we should be unable to support the conclusion of the District Judge. He found that the deceased husband gave no authority to his widows to adopt but that after his death, the elder widow with the consent of all the sapindas made the adoption, without the knowledge of the junior widow and without consulting her. The District Judge observed that the adoption was against the interest of the junior widow and her infant daughter, who were thereby deprived of the property ‘ which had come to them from the deceased, and he held that the adoption was invalid “for want of the co-widow’s consent, on the analogy of the Travancore cise quoted by Mr. Mayne (Hindu Law, page 155) and on the general principle that persons cannot be divested by others, without their consent, of property already vested in them by law even where the interest is not a complete, but a limited, interest, such as that of a Hindu widow in her husband’s estate.” We do not think that the case referred to by the District Judge has any application to the present case. On the other hand it has been laid down by the Bombay High Court that though ”it would seem to be unjust to allow the elder widow to defeat the interest of the younger by an adoption against her wish,” yet ” if the adoption is regarded as the performance of a religious duty and a meritorious act, to which the assent of the husband is to be implied wherever he has not forbidden it, it would seem that the younger widow is bound to give her consent being entitled to a due provision for her maintenance and if she refuses the elder widow may adopt without it.” Rukkkmabai v. Radhabai 5 B.H.C. A.C.J. 192. This decision was followed in Bhimawa v. Sangawa I.L.R. 22 Bom. 206 and Amaca v. Mahad Gaudu I.L.R. 22 Bom. 416. The vakil for the respondent argues that the absence of consultation with the younger widow renders the adoption invalid and relies on the analogy of Subramanyam v. Venkamma I.L.R. 26 M. 627 and the remarks at page 636 (of 26 Mad.), but we do not think that the case is in point. The junior widow is bound as a matter of duty to consent, and if, as their Lordships of the Privy Council say Collector of Madura v. Moothoo Ramalinga 12 M.I.A. 442 the consent of kinsmen is required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose interest in the estate would be defeated by the adoption, it would seem that the omission to consult the co-widow though no doubt improper would not be a sufficient reason for holding the adoption to be invalid. We must, however, dismiss the appeal with costs on the ground that no adoption took place.

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