The main legal point established in the judgment is the requirement of authority for adoption under the Mitakshara law and the test of proximity in degree for determining the preferential heir among atma bandhus.

Judgement

Consolidated Appeals (Nos. 84 and 113 of 1936) from two decrees of the High Court (April 2, 1935) substantially affirming two decrees of the District Judge of Tinnevelly (January 3, 1929).

These consolidated appeals raised the question as to the right of succession to the Uttumalai Estate,

Law. Rep. 65 Ind. App. 93 ( 1937- 1938) Balasubrahmanya Pandya Thalaivar V. M. Subbayya Tevar

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situated in the Tinnevelly district of the Madras Presidency. Each of the following three claimants who now appeared before the Board had filed separate suits in assertion of his claim (1.) Navanithakrishna Marudappa Tevar, who claimed by adoption to the father of the last male holder; (2.) Subbayya Tevar; and (3.) Balasubrahmanya. The last two denied the validity of the adoption and each of them claimed to be the nearest sapinda of the last male holder. One of the principal questions was as to the priority among atma bandhus in a Mitakshara succession dispute, and the point for determination, in the event of the adoption of the first claimant being held invalid, was whether the fathers half-sisters son (Balasubrahmanya) or the mothers brother (Subbayya Tevar) was the preferential heir.

The facts, and a pedigree table showing the relationship of the respective parties, appear from the judgment of the Judicial Committee.

The District Judge, and on appeal the High Court (Ramesam and Stone JJ.), held that the mere association of one wife in an adoption by the husband was no indication of an authority to her to make a second adoption, and they accordingly held that the adoption of Navanithakrishna was without authority and that his claim failed.

With regard to the respective claims of Subbayya Tevar and Balasubrahmanya both Courts were of opinion that Subbayya Tevar, the mothers brother, was the preferential heir.

1937. Nov. 1, 2, 4, 5 and II. Pugh K.C. and J. E. Godfrey for Navanithakrishna Marudappa Tevar. There are four schools with different views on the question of adoption, but it is held in every school that where a husband has given a power to adopt a son, his widow has power to make any number of adoptions. The fact that in this case there was an adoption in conjunction with Minakshi is equivalent to giving power to her to make other adoptions. If the husbands intention was that he should have a son, there is an implied authority to adopt. The fact that he prohibited the other wife from making an adoption must also be taken into consideration. The whole family of the widows relations signed a document showing their consent to the adoption. She had authority to make the adoption. [On the question of adoption reference was made to Amarendra Mansingh v. Sanatan Singh (( 1933) L. R. 60

I. A. 242, 247.); Collector of Madura v. Moottoo Ramalinga Sathupathy (( 1868) 12 Moo. I. A. 397, 432); Patnaloo Appalswamy v. E. Moosalaya (( 1933) I. L. R. 12 R. 22.); Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (( 1898-9) L. R. 26 I. A. 113.); Adusumilli Kristnayya v. Adusumilli Lakshmipathi (( 1920) L. R. 47 I. A. 99.); and Kannepalli Suryanarayana v. Pucha Venkata Ramana.(( 1906) L. R. 33 I. A. 145.)]

J. E. Godfrey following, referred to Mandavilli Seetharamamma v. Attivilli Suryanarayana (( 1926) I.

L. R. 49 M. 969.); Annapurni Nachiar v. Forbes (( 1899) I. L. R. 23 M. 1.); and Kannepalli Suryanarayana v. Pucha Venkata Ramana.(( 1906) L. R. 33 I. A. 145.)

De Gruyther K.C., and Sidney Smith for M. Subbayya Tevar. On the matter of adoption, the first question is whether authority was given to adopt. Both Courts below have found that no authority was given. In Kannepalli Suryanarayana v. Pucha Venkata Ramana (( 1906) L. R. 33 I. A. 145.) the Board came to the conclusion that the actual authority was sufficiently large to provide for a second adoption. Here there was no authority. With regard to the completion of the husbands intention by the widow see Mandavilli Seetharamamma v. Attivilli Suryanarayana.(( 1926) I. L. R. 49 M. 969.) It was