Ramachari through his Guardian C.P. Seshayar and Another vs Saraswati Ammal and Another

Sadasiva Aiyar, J.—The defendants NOS. 1 and 2 are the appellants. The tenth defendant is the natural father of the 1st defendant, The

plaintiff is the widow of a Sourasthra Brahmin, Sundararamier, who died in April 1906, when he was about 22 or 23 years old. The plaintiff was

the second wife whom he had married, when she was a girl aged about 12 years. The marriage took place only 17 days before his death, though

he had already another girl-wife, the second defendant, living. The tenth defendant is the elder brother of the plaintiff''s husband. The plaintiff''s

husband seems to have been a wild young man who, as soon as he attained majority, about 1902, demanded partition from his elder brother and

obtained his share of the ancestral property, worth about Rs. 50,000. Since then, he seems to have been addicted to strong drink (foreign liquors)

and, as I said already, he died when he was comparatively young. The plaintiff''s case is that the death was sudden and that it was accused by

heavy drinking.

The case of the first defendant and his natural father, the tenth defendant, is that while plaintiff''s husband was doubtless addicted to drink, he

also suffered from ever for about a week before his death and the direst cause of the death was the fever. It has, however, to be remarked that,

though he was a rich man, no medical attendance worth the name seems to have been secured for his treatment during his alleged illness. He died

at about 10 P.M. and the body was cremated next morning. Shortly before his cremation, the tenth defendant gave the first defendant in adoption

to the plaintiff and to her co-widow. Both are girls of 12 who had not attained puberty, and the evidence is that, after the adoption, the funeral

ceremonies of the deceased were performed by the tenth defendant for his natural son, the first defendant. Shortly afterward, another adoption

was alleged to have taken place of another boy, the eon of a brother of the tenth defendant, (which brother, Vencatachallapatty, had been adopted

away to an agnate), The first defend-was about a year old at his adoption and the other boy seven or eight years old. Quarrels arose soon after

between the natural fathers of the two adopted boys, and in July 1906 the natural fathers, acting for their respective sons, divided the moveables

and some other properties between themselves under the lists. A and B. Then, in August 1907 the plaintiff''s father and guardian, gave notice to the

tenth defendant demanding possession of the moveables of the plaintiff''s husband which the tenth defendant was in possession of on behalf of the

first defendant. This notice, of course, ignored the adoption of the first defendant.

Then, in October 1907, the plaintiff''s father, who seems to have been a man of no property, (and who did not sample to give his daughter as

second wife to a dissipated young man while the first wife was living), executed the agreement, Exhibit I, on her behalf, the other party to the

agreement being the tenth defendant acting on behalf of the first defendant. Under this agreement, plaintiff''s father gave up, on behalf of the

plaintiff, all right to question the adoption of the first defendant, on plaintiff beings allowed a monthly allowance of Rs. 14 with a house to live in and

with, the use of certain vessels and jewels. That maintenance was received by him on behalf of the plaintiff till she attained majority, which was

about 1912. Then she herself received that maintenance till April 1915, Then she was advised that tie might repudiate the factum of adoption and

she might also contend that, even if the adoption took place, it was legally invalid. So she brought this suit in pauper forming October 1910 en

behalf of herself and her co-widow, the second defendant, for possession or most of the Immovable properties left by her husband excluding one

dwelling house. (It is not clear why that dewelling house has been left out. It may be that, as suggested, the reason is that the house is in the

possession of the plaintiff.) It is unnecessary to consider the case of the defendants other than Nos. 1, 2 and 10, as they do not claim any

independent rights in the properties. I might also at such state that the other alleged adopted eon and his natural father are not parties to this suit

and are, of course, not bound by the decision in this case. There was some controversy in the lower Court as to whether the two boys were

adopted at the same time, or whether one was adopted on the day of the cremation and the other the next day. I am, however, satisfied from the

evidence that the first defendant was adopted at first. It is, however, unnecessary to pursue the subject, as, though the first defendant''s adoption

may not be invalid on the ground of the impropriety of two mutinous adoptions, it is clearly invalid on two other grounds; namely, (1) that the

widows who adopted the first defendant were minors who had not attained sufficient maturity of understanding; see Kovvidi Sattiraju v. Patamsetti

Venkataswami 40 Ind. Cas. 518, and (2) that it has not been proved by any reliable evidence that the plaintiff''s husband (whom no one expected

to die suddenly, when he was quite a young man and who even contrasted a second marriage 17 days before his death) gave oral authority to his

girl wives to adopt a eon after his death, The evidence on this point as to authority has been carefully discussed by the lower Court and I agree

with its conclusion on that point. No doubt, there are admissions of the plaint-ill''s father and of the plaintiff as to the first defendant being the

plaintiff''s husband''s adopted son, in the receipts executed for then:, for the maintenance amounts received by them. That admission must, no

doubt, be taken as an admission, both of the factum and of the validity of the adoption. In that view, the burden of proving that the adoption of

plaintiff is not a valid adoption may be said to lie on the plaintiff. We have however, at this stage of the litigation, to arrive at a finding on that

question on the evidence as a whole, and I entertain no doubt on the evidence that there was no authority given by the plaintiff''s husband to make

an adoption. Farther, on the admitted fact the widows being girl''s of 12 or 13, the adoption is wholly invalid. An invalid adoption cannot be ratified

by mere admissions and acquiescence.

The only remaining question is, whether there is a personal estoppel which prevents the plaintiff herself from disputing the validity of the

adoption. The cases of Parvatibayamma v. Ramakirishna Rau 18 M. 145 and Vaithilinga Mudali v. Munigan 15 Ind. Cas. 299 make it clear that,

unless the status of the alleged adopted boy has been so radically changed that he could not go back to his natural family, it is difficult to sustain the

plea of estoppel by the conduct of the adopting party. It may be that the decision in Parvatibayamma v. Rama Krishna Rau 18 M. 145 laid down

the law in too broad language. (See Mayne, paragraph 209), Where the adopted mother herself made representations that she bad authority to

adopt and then adopted the boy, when she secured a wife for him according to her own inclinations and ideas, when she changed his status from

that of a boy in a family of peasants to that of a scion of an aristocratic) Zemindar''s family, and when the adopted boy incurred debts and changed

his mode of life on the faith of representations (made to his natural father) as regards the alleged authority to adopt, those expenses having been

incurred to defend his status against others, it may be that the adoptive mother herself would be personally estopped, as held by the Privy Council

in Dharam Kunwar v. Balwant Singh 15 Ind. Cas. 673 : 9 A.L.J. 730 (though the observations as to estoppel in that case are obiter dicta.) But in

the present case the plaintiff was a child-widow when she made the adoption. The boy was nominally adopted to his own paternal uncle. The girl

(adoptive mother) never interfered with the estate and did not look after the boy at all and all that she did was that, after she became a major, she

received the maintainance amount, which her father had secured for her, when she was a minor. The money which she got as maintenance was her

own money, if the adoption (as I hold) was invalid. There is no allegation in the written statement that the plaintiffs made any representations on the

faith of whish the adoption took place, or the first defendant has been prejudiced. I, therefore, agree with the lower Court that there is no question

of estoppel. I might further state that, on the principle of the decision in Seshappaya v. Venkatramana Upadya Rolnd. Can 732 : 33 M. 459 , there

can be no estoppel, where the other side knew the full fasts. The first defendant''s father knew all the facts and knew that the girls were only 12

years old when the adoption was made.

Finally, an argument was put forward that the plaintiff could sue only for a half share of the properties and not on behalf of the second defendant

also, for the whole property. Contrary observations unconnected with the context were quoted from certain decisions in support of this contention.

But I am satisfied that there is nothing in this contention. The Court has full power to give a decree on the facts found in favour Of one or more of

the parties who are entitled to such decree, provided they do not object to be ranged as plaintiffs. In the present case, the second defendant is

willing to be made a co-plaintiff of course, the Court should not ordinarily give a decree to reliefs not asked for, without directing the plaint to be

amended. In this case, the relief given by the decree does not go beyond the relief asked for in the plaint. No doubt, the second defendant said in

her written statement that a separate suit has to be filed for obtaining possession of the half share due to her. But, as I said, whatever she might

have said in the written statement, provided she now agrees to be co plaintiff with the plaintiff on record I see no objection to the upholding of the

decree of the lower Court.

In the result, there will be an order to make the second defendant a co-plaintiff and the lower Court''s decree will be confirmed with costs of the

plaintiff payable by the appellants.

Spencer, J.

I agree that, upon the evidence in the case, there is no satisfactory proof, either that the deceased gave authority to the plaintiff to make an

adoption or that she was of a sufficient capacity to understand the nature and consequence of her act or that she voluntarily took the boy in

adoption. I think that if the deceased Sundararamier was conscious of his approaching decease, he would either hare made the adoption himself of

the son he desired to take in adoption, or he would have given some written authority to one or both of his wives to adopt a suitable boy after his

death, and, in doing so, he would not have neglected to make some provision for his wives whose parents were present at his death-bed. The

plaintiff, at the time of her husband''s death, was a minor of the age of 12, as she did not attain majority till October 1911, and the death took place

in April 1906. In order that an adoption should be valid, it is necessary that the adopting parent should have such intelligence as to appreciate the

nature of the act and to take an intelligent part in its performance. See Tayammaul v. Sashachalla Naicker 2 Sar. P.C.J. 139 . The alleged adoption

followed so closely on the heels of the giving of the authority to adopt and the minor plaintiff was represented by her father and surrounded by

relatives so that the transaction had all the appearance of being a concerted family arrangement. In this respect this case resembles the above case

which went on appeal to the Privy Council.

I am also satisfied that there is no case of estoppel here. In order to make an estoppel it is necessary to show that the first defendant''s position

was in some way changed to his disadvantage in consequence of the adoption so, as to render it inequitable that the adoptee should he restored to

his place in the natural family [See Vaithilinga Mudali v. Munigan 15 Ind. Cas. 299 . It was pointed out in that case that an invalid adoption per se

does not destroy the adoptee''s rights in his natural family. The circumstances of the case in Dharam Kuweit v. Balwant Singh 15 Ind. Cas. 673 :

(1912) M.W.N. 641 were different. In that case the Privy Council found that the adopted son had undergone a change of social status which, had

so altered his mode of life as to make his return to the former condition a hardship, Also expenses had been incurred in the maintenance of the

privileges of his position as a minor Rajah, and he had married in faith of the adoptive mother''s word, and creditors had lent him money.

In this present case it is not explained in the written statement how the first defendant has been prejudiced by the plaintiff''s conduct, and from

the record it does not appear that she has done anything beyond receiving a small amount of maintenance out of the family property for her own

support, when she would have been entitled to receive a far larger amount, if she had not made any adoption. I, therefore, consider that no

estoppel arises out of the plaintiff''s action in signing Exhibits IV and IIq to IIgg which were receipts executed by her after she attained majority.

Before attaining majority she could not be estopped by anything done on her behalf which, as a mino9r, she was not competent to do for

herself.

I agree that this appeal should be dismissed with costs.