Case: G. Appaswami Chettiar And Anr Vs. R. Sarangapani Chettiar &amp; Ors

Madras High Court held that the term "santhathi" is wide enough to include adopted son also. In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu v. Raja Rajeswara Rao (1939) 1 Mad LJ 831 : (AIR 1939 Mad 614) a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would fall within the words "purusha santhathi". Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons. In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch. The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no. doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons. Justice Krishnaswami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi" held that the words are Sanskrit in origin but used in the languages of the Madras Presidency. The word "purusha" is translated as "male" and "santhathi" as "issue, progeny or descendants". By aurasa son it is meant "produced from the breast, born of oneself. or legitimate". According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only. According to Yagnavalkya an aurasa son is he who is produced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son. Purusha Santhathi though would exclude illegitimate son may include the adopted son. In the context of the settlement deed because both aurasa as well as adopted son were included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son. This case was taken up to the Privy Council and in (1941) 68 Ind App 181 at p. 186 : (AIR 1942 PC 3) the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving neither a legitimate nor an adopted son. Though the case does not specifically decide that santhathi would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also. Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasa son.17. The learned counsel for the appellants referred to V. S. Aptes Students Sanskrit English Dictionary where the meaning of the word "santhathi" is given at page 582 as "offspring, progeny". The learned counsel also referred to the 10th Skandam. 2nd part, 61st Chapter of Shrimad Bhagavatham and submitted that the term "putra pouthradhi santhathi" would include only children born of the body. We are unable to accept this contention and to read the passages cited as excluding an adopted son. Further, neither the dictionary meaning nor the passage in Shrimad Bhagavatham can be accepted as laying down principles of Hindu Law. We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandsons and their descendants born out of the body excluding the adopted son or his descendants. The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.18. The view of the High Court that the second respondent would succeed to Sethu Chettiar as his adopted son is right but as we have held that the second respondent would succeed under the earlier clause of the will which provides that after Ramathilakam Ammal her "poutra puthra santhathies", resort need not be had to the subsequent clause in the will which provides for Sethu Chettiar the husband of Ramathilakam Ammal and his descendants taking the property. In our view, as the second respondent being the adopted son not only of Ramathilakam Ammal but also of her husband Sethu Chettiar, his rights as the adopted son of Ramathilakama Ammal as well as Sethu Chettiar cannot be denied. On the failure of Ramathilakam Ammal not having putra pouthra santhathies or female descendants the property would be taken by sethu chettiar and his santhathies. The fact that Sethu Chettiar died during the lifetime of Ramathilakam Ammal would not affect the vesting in favour of Sethu Chettiars santhathies.19. The learned counsel for the respondents submitted that in any event the appellants cannot succeed as after the Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal had, would ripen into an absolute estate under Act 30 of 1956. This contention was rightly rejected by the High Court as the life estate to which Ramathilakam Ammal was entitled was under the will of her father and therefore S. 14 (2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.20. As we have held that the adoption is valid and that the second respondent is entitled to take the estate of Gopalasami Chettiar under the will the appellants are not entitled to any declaration in respect of the alienations made by respondents 1 and 2 in favour of respondents 3 and 4 as they are not entitled to any interest in the properties.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.18. The view of the High Court that the second respondent would succeed to Sethu Chettiar as his adopted son is right but as we have held that the second respondent would succeed under the earlier clause of the will which provides that after Ramathilakam Ammal her "poutra puthra santhathies", resort need not be had to the subsequent clause in the will which provides for Sethu Chettiar the husband of Ramathilakam Ammal and his descendants taking the property. In our view, as the second respondent being the adopted son not only of Ramathilakam Ammal but also of her husband Sethu Chettiar, his rights as the adopted son of Ramathilakama Ammal as well as Sethu Chettiar cannot be denied. On the failure of Ramathilakam Ammal not having putra pouthra santhathies or female descendants the property would be taken by sethu chettiar and his santhathies. The fact that Sethu Chettiar died during the lifetime of Ramathilakam Ammal would not affect the vesting in favour of Sethu Chettiars santhathies.19. The learned counsel for the respondents submitted that in any event the appellants cannot succeed as after the Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal had, would ripen into an absolute estate under Act 30 of 1956. This contention was rightly rejected by the High Court as the life estate to which Ramathilakam Ammal was entitled was under the will of her father and therefore S. 14 (2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.20. As we have held that the adoption is valid and that the second respondent is entitled to take the estate of Gopalasami Chettiar under the will the appellants are not entitled to any declaration in respect of the alienations made by respondents 1 and 2 in favour of respondents 3 and 4 as they are not entitled to any interest in theshould be evidence of the assent of the kinsmen as suffices to show that the adoption by the widow was in the proper and bona fide performance of a religious duty and not due to capricious or corrupt motive. The reason for the rule requiring the consent of the sapindas is not due to deprivation of proprietary interest of the reversioners but for an assurance that the adoption was a bona fide performance of the religious duty and not due to any capricious action by the widow. In the case of a joint family it is necessary that the widow should consult the elders in the husbands family particularly the father of the husband who is her venerable protector, but when the family is divided the duty of the widow is to consult the agnates of the husband at the first instance. If the consent by the nearer agnates is withheld for improper reasons she can proceed to consult and obtain the consent of remoter agnates.pleas found favour with the trial court though the High Court did not accept it. The High Court considered the matter elaborately and found that requisite consent was obtained. As we agree with the reasoning and the conclusion arrived at by the High Court it is not necessary for us to set out all the facts and reasons for our conclusion in detail. It is sufficient to state that amongst the relations of the first respondents husband the two appellants who are the brothers sons of Sethu Chettiar were admittedly consulted but refused their consent. Pattalam Ramaswami Chettiar is an agnate removed by three degrees. Ramasami Chettiar and Kuppusami Chettiar are two other agnates of Sethu Chettiar. It is mainly on the ground that these three agnates were not consulted that the trial court upheld the plea of the appellants that the necessary consent from sapindas had not been obtained. Pattalam Ramasami Chettiar had attested the adoption deed Ex.executed immediately after the adoption ceremony was over. The High Court found on evidence that Pattalam Ramasami Chettiar was present at the adoption and attested the adoption deed and concluded from the circumstances that he as an attesting witness had knowledge of the purport of the document which he was called upon to attest and therefore it could be reasonably inferred that he was a consenting party to the transaction. Regarding Ramasami Chettiar and Kuppusami Chettiar the High Court found after reference to the evidence of one of the appellants and P. W. 5 examined on their behalf that the two agnates were not proved to be dhayadis of Sethu Chettiar. The High Court rightly pointed out that the attack in paragraphof the plaint was that the consent of the sapindas has not been obtained but there was no. reference to the failure to obtain consent of the sapindas of the husband of the first respondent. The High Court has pointed out that Ramasami Chettiar and Kuppusami Chettiar were admittedly 3 to 4 degrees removed and that Ramasami Chettiar died about 10 years ago. There is no. whisper in the plaint about the widow having failed to obtain consent of Ramasami Chettiar or Kuppusami Chettiar. The High Court was satisfied that Ramasami Chettiar and Kuppusami Chettiar are not proved to be the dhayadis of Sethu Chettiar. The court also found that on their own admission the appellants withheld the consent improperly as they did not want to lose the right to property. The widow had consulted Govindasami Chettiar. Govindarajulu Chettiar, Devaraju Chettair and Ramasami Chettiar, the father of the adopted boy, who were all cognates of the first respondents husband. The High Court also found that Devarajulu Chettiar, another sisters son of Sethu Chettiar who was examined as D.W. 9, had given his consent. The trial court has found that the refusal of the appellants to give their consent is improper and that they had more or less abused their fiduciary position. The first appellant who examined himself as P.W. 1 stated that he had withheld his consent because he was afraid that he would lose his reversionary right to the estate. It is also clear that the appellant was negotiating a price through several persons for giving his consent. On the facts the trial courts as well as the High Court rightly came to the conclusion that the appellants improperly withheld their consent to the adoption. On a consideration of the evidence, we agree with the conclusion arrived at by the High court that the widow had consulted all the necessary sapindas and that the withholding of the consent by the appellants was due to improper motives which would not have the effect of invalidating theAmmal, the first respondent, in her evidence admitted that as the appellants were pestering her with litigation and demanding money, in order to put an end to these troubles, she resorted to adoption. She questioned the advocate whether these troubles would be dispelled if she resorted to adoption and the advocate stated that the appellants would not be able to make any claim for the property if she adopted and that she could live without anxiety. In her chief examination she stated that according to the instructions of the Purohit she made a request to the parents of the boy in the following termsyour son in adoption so that my husband and I shall attain salvation, so that funeral obsequies shall be performed, and so that my family shall berequest was made to the hearing of all the people assembled. The adoption deed Ex.recites that for the purpose that her husband may derive spiritual benefit and that his soul may rest in peace and the annual ceremonies and the other vedic rites of herself and her husband may be performed properly, and that her husbands lineage may be propagated and perpetuated and that heir be found for him, she considered it proper to take in adoption to her husband the second respondent. Inthe first respondent was questioned about her statement as to the reasons for her adoption and she stated that it was for the spiritual benefit "paralokasthanam" of her husband that she had adopted. Reading the evidence as a whole we are satisfied that the reason for adoption was for spiritual benefit of her husband as seen from her declaration at the time of the adoption ceremony and the recitals in the adoption deed which was prepared at the time of the adoption. The statement by her on the stress of thethat she resorted to adoption for putting an end to the troubles by the sapindas which she had in plenty would only disclose how bitter she was against them. The evidence taken as a whole would not justify our coming to the conclusion that the adoption was due to any improper motive by the widow and not for the spiritual benefit of her husband. The trial court was of the view that the appellants were anxious to take money and at the same time the first respondent was willing to give but the negotiations failed because the parties could not agree on the exact figure and having regard to the circumstances the conduct of both the parties is open to criticism. The High Court did not record any clear finding as to the motive of the widow in making the adoption but observed that even conceding that the real motive of the widow in making the adoption was to create an heir for her husband after her demise, if that act incidentally created a son for her husband far from such act being considered the consequence of an improper motive for making the adoption, it would be an altruistic motive with reference to the adoption. The learned counsel questioned the correctness of the view taken by the High Court and submitted that improper motive of the widow would vitiate the validity of the adoption.9. The law is well settled that when there is express authority by the husband or when consent of the sapindas has been properly obtained the motive of the widow is irrelevant. In Kanakaratnam v. Narasimha Rao ILR (1942) Mad 173 : (AIR 1941 Mad 937  ) (FB), it was held that when a widow has received valid authority to adopt, her motive in making the adoption should be ignored, inasmuch as the benefit conferred on her deceased husband by the adoption is in no. way affected by her motives. The Full Bench of the Madras High Court was considering the case in which the widow had valid authority to adopt and held that her motive is entirely irrelevant. It proceeded to state. "However spiteful her action may be towards others the benefit conferred upon her deceased husband by her action is in no. way affected, and the fact that she comnot act without authority makes the position all the more clear." The decision leads to the inquiry as to how far the motive is relevant in a case in which the widow has not got the requisite authority. In Ramnad case (supra) it was held that the adoption should not be from capricious or from a corrupt motive. Widows motive in making the adoption is not really a factor for the emphasis in Ramnad case was regarding the consent of the nearest sapindas. If such consent had been obtained the motive is irrelevant and in the absence of the authority of the husband and without valid consent of the sapindas the adoption will be invalid whatever her motive may be. In the circumstances, the motive of the widow would not normally be relevant.We cannot ignore the development that has taken place in the society at large during the space of one hundred years since the Ramnad case (supra) was decided and 50 years since Kumaraswami Sastri J. gave expression to his views on the matter.13. The basis for requiring the assent of the sapindas is on the ground of the presumed incapacity of a woman. According to the text of Yagnavalkya in Ch. I, Verse 85 and in Ch. II, Verse130 it is stated that the father should protect a maiden. husband a married woman and sons their mother as she is not fit for independence. In Ramnad case (1867) 12 Moo Ind App 397 (PC) (supra) this doctrine was recognised and the Privy Council ruleassent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by theshould be such evidence of the assent of Kinsmen as suffices to show, that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive. Justice Subbarao, as he then was, summed up the law thus in Chandrashekhara Mudaliar v. Qulandaivelu Mudaliar (1963) 2 SCR 440   : (AIR 1963 SCwill be seen that the reason for the rule is not the possible deprivation of the proprietary interests of the reversioners but the state of perpetual tutelage of women, and the consent of kinsmen was considered to be an assurance that it was a bona fide performance of a religious duty and a sufficient guarantee against any capricious action by the widow in taking a boy inbasis for the assent of the kinsmen by reason of the presumed incapacity of women for independence seems to have disappeared. During the hundred years society has advanced and the presumption of incapacity of women for independence can no. longer be taken for granted. Apart form the Constitutional guarantee that there will be no. discrimination against any citizen on the ground of sex, it is clear that women have established that the presumption of incapacity for independence is no. longer available. It isthat women have occupied highest positions and have proved themselves equal to men in all professional and other avocations. In the changed circumstances therefore the basis for the requirement of the assent of kinsmen by a widow due to incapacity no. longer exists and it may well be asked whether the sapindas assent is any more necessary. Added to this circumstance is the codification of personal law of the Hindus on several branches of Hindu law.The Hindu Marriage Act, 1955 has codified the law or the subject of marriage and divorce.The Hindu Succession Act, 1956 has codified the law relating to intestate succession.The Hindu Minority and Guardianship Act, 1956 has codified the law relating to minorities and guardianship among Hindus andthe Hindu Adoptions and Maintenance Act, 1956 has codified the law of adoption and maintenance. The codified law has made several changes in the law of adoption. With the passing of the Hindu Succession Act, 1956, sons and daughters are treated equally in the matter of succession. Equality in status is recognised in the matter of adoptions also. The Hindu Adoptions and Maintenance Act, 1956, provides for adoption of boys as well as girls. Formerly. a woman could adopt only to her husband but now she can adopt for herself. A widow can now adopt a son or daughter to herself in her own right. No. question of divesting of any property vested in any person arises for under the Succession Act she is entitled to take the property absolutely. Under the changed circumstances therefore the questions of the sapindas consent or depriving him of his reversionary interest or the motive of the widow for adoption do not arise. But as in this case the second respondent was adopted on 10th September, 1953 i.e. three years beforethe Hindu Adoptions and Maintenance Act, 1956 came into force the law that was applicable before the Act came into force will be applicable to the present case. Though the Act came into force in 1956 and this adoption was in 1953 before the Act came into force we have to take into account the changed circumstances particularly disappearance of the basis of the requirement of sapindas assent on the ground of presumed incapacity of the women.14. It may also be noted that the facts of the present case are different from the case of Sri Krishnayya Rao v. Surya Rao Bhadur Garu (AIR 1935 PC 190  ) (supra) where the widow stipulateed that half the estate should be given over to her absolutely and maintenance provided. In the present case there has been no. stipulation by the widow for any settlement of property or maintenance and on her by the adopted son or his father. The only ground on which the adoption was attacked was that the motive of the widow was to deprive the sapindas of the property and not for the spiritual benefit of the husband. We have already recorded a finding that the motive for adopting the son was spiritual benefit. The circumstance that led to the consideration of the motive of the widow in the case referred to namely a provision for settlement of half the properties for discharging debts at the time of the adoption does not arise in this case.To consider the question whether the second respondent is entitled to inherit as the adopted son of Ramathilakam which claim was negatived by the High Court and the question whether the High Court was right in its conclusion that the second respondent would be entitled to the legacy as the adopted son of Sethu Chettiar, it is necessary to set out the relevant parts of the will. Paragraph 2 of the will refers to charities specified in List II. The charities were to be performed by the testators third wife Seshammal and after her by his daughter Ramathilakam Ammal and after her by her sons and grandsons, failing them by her female heirs and if they are not available by sethu Chettiar, husband of Ramathilhakam Ammal and his Putra Pouthra Santhathies permanently from generation to generation. Immoveable properties are described in List III and according to the will after the lifetime of the third wife Seshammal, the immoveable properties specified in List III as well as cash and moveable properties should be taken and enjoyed by Ramathilakam Ammal and after her by her Putra Pouthra Santhathies, and if they are not in case, by her female descendants and in case they too are not in case, by his sisters son Sethu Chettiar. the husband of the aforesaid Ramathilakam Ammal and after him by his santhathies. According to the terms of the will the properties are to be enjoyed by Ramathilakam Ammal and after her by her putra pouthra santhathies. The contention of the learned counsel for the appellants is that the words "putra pouthra santhathies" would only include the sons born to Ramathilakam Ammal and would not include an adopted son. Support for this contention is sought to be derived by the subsequent clause in the will which provides that if putra pouthra santhathies are not in case, by her female descendants. The High Court accepted the contention holding that if the intention was to include an adopted son it would not have been necessary to give the estate to Sethu Chettiar the husband of Ramathilakam Ammal. From this the High Court inferred that the intention of the testator was that after the failure and in the absence of male issue the property is to be succeeded by the daughters of Ramathilakam Ammal. This would indicate that the property was to be given to the children born of the body of Ramathilakam Ammal. We are unable to construe the will in the manner in which the High Court has done. The words "putra pouthra santhathies" would indicate son, grandson and descendants. We are unable to infer that the word "putra" is confined only to children born of the body of Ramathilakam Ammal. Hindu Law has recognised the institution of adoption and once a boy is adopted validly he for all purposes is recognised as the son. We do not see any justification for excluding an adopted son from the term "putra". Neither are we satisfied that the term "santhathies" would exclude adopted son and his descendants. In Tirupathi Nicken v. Venkatasubba Naicken (1928) 28 Mad LW 819, a Bench of the Madras High Court held that the term "santhathi" is wide enough to include adopted son also. In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu v. Raja Rajeswara Rao (1939) 1 Mad LJ 831 : (AIR 1939 Mad 614) a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would fall within the words "purusha santhathi". Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons. In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch. The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no. doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons. Justice Krishnaswami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi" held that the words are Sanskrit in origin but used in the languages of the Madras Presidency. The word "purusha" is translated as "male" and "santhathi" as "issue, progeny or descendants". By aurasa son it is meant "produced from the breast, born of oneself. or legitimate". According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only. According to Yagnavalkya an aurasa son is he who is produced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son. Purusha Santhathi though would exclude illegitimate son may include the adopted son. In the context of the settlement deed because both aurasa as well as adopted son were included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son. This case was taken up to the Privy Council and in (1941) 68 Ind App 181 at p. 186 : (AIR 1942 PC 3) the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving neither a legitimate nor an adopted son. Though the case does not specifically decide that santhathi would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also. Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasaare unable to accept this contention and to read the passages cited as excluding an adopted son. Further, neither the dictionary meaning nor the passage in Shrimad Bhagavatham can be accepted as laying down principles of Hindu Law. We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandsons and their descendants born out of the body excluding the adopted son or his descendants.The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.