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1948 Supreme(SC) 62
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD NORM AND, LORD OAKSEY AND SIR JOHN BEAUMONT.
MUTHUSWAMI THEVAR - Appellant
Versus
CHIDAMBARA THEVAR - Respondents
On appeal from the High Court at Madras.
Decided On : July. 19. 1948.
Solicitors for appellant :T. L. Wilson & Co. Solicitors for respondent: Douglas Grant & Co.
Adoption must be proved by heavy evidence, and the biological father's consent is essential. For Sudras, marriage concludes the period during which a person can be adopted.
Headnote:(A) Code of Civil Procedure, 1908 - Section 110 - Value of subject-matter - Where special leave to appeal is granted after the question of value has been fully debated and the respondent has appeared on the petition, a preliminary objection regarding the value of the subject-matter is not open at the hearing of the appeal.
(B) Hindu Law - Adoption - Burden of proof - The onus of proving an adoption is heavy and rests on the person who asserts it, as it seeks to displace the natural succession of property.
(C) Hindu Law - Adoption - Consent - Only the father and mother can give a son in adoption; in the lifetime of the father, the mother cannot act without his permission. A registered deed of adoption is not conclusive if the biological father denies consent and the ceremony is not proved by disinterested evidence.
(D) Hindu Law - Adoption of Sudras - Marital status - Under the Dattaka Chandrika, marriage concludes the period within which a Sudra may be adopted.
Facts of the case:
A suit was instituted for a declaration that a purported adoption of the respondent by the appellant's uncle never took place, or if it did, was invalid because the respondent was a married man. The respondent relied on a registered deed of adoption and testimony regarding a ceremony, while the biological father denied giving the son in adoption.
Findings of Court:
The court held that the evidence regarding the adoption ceremony was weak and lacked corroboration from disinterested witnesses. The biological father's denial of consent was credible and supported by the fact that he did not sign the adoption deed. Additionally, the respondent's marriage rendered the adoption invalid under the applicable law for Sudras.
Issues: Whether the factum of adoption was proved; whether the biological father's consent was obtained; and whether the respondent's marital status invalidated the adoption.
Ratio Decidendi: The burden of proving adoption is heavy. The absence of the biological father's consent and the lack of disinterested evidence of the ceremony outweigh a registered deed. For Sudras, marriage terminates the capacity to be adopted.
Result: Appeal allowed.
Legal Category Hierarchy
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family law
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hindu law
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adoption
- requirements for valid adoption
- adoption of sudras
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adoption
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hindu law
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practice and procedure
-
civil procedure
- valuation of suit
-
evidence
- burden of proof
-
civil procedure
Judgement
Appeal (No. 61 of 1947), by special leave, from a judgment and decree of the High Court (January 12, 1945) reversing a judgment and decree of the Subordinate Judge of Ramnad (August 11, 1943).
The suit giving rise to this appeal was instituted by the appellant against the respondent and one Ramu Amal, a minor, claiming a declaration that an adoption made by the appellants uncle, one Chinnamadappa, of the respondent never in fact took place, and that the adoption, even if true, was invalid because the respondent, at the time of the adoption, was a married man.
The facts appear from the judgment of the Judicial Committee.
The trial judge held that on the evidence as a whole he was not satisfied that the respondent was actually adopted by Chinnamadappa, and further, that the adoption, even if true, would be invalid because the respondent was a married man at the date of the adoption.
The High Court (King and Bell JJ.) held that there was ample evidence in support of the fact of adoption, and that the respondent was not a married man at the time of the adoption.
1948. June 15, 16. Umrigar and K. Tyabji for the respondent, took a preliminary objection that the appeal did not satisfy the requirements as to value of s. 110 of the Code of Civil Procedure. The evidence on Record clearly shows that the subject-matter of the suit in the court of first instance was only Rs. 8,384.6.3. (the respondents half-share of the family properties), and not Rs. 10,000 or upwards as required by s. 110 of the Code. Rs. 8,384.6.3. was the true market value of the properties at the date of suit, and did not represent any artificial value of the properties for fiscal purposes or court-fee. It is appreciated that it may be asked how, once leave to appeal has been granted by His Majesty in Council, it is possible for the respondent to allege that the appeal cannot be heard. On investigation, however, it has been found that there have been two ex parte applications in which leave was granted on the allegation that the appeal satisfied the requirement as to value of s. 110. In one case, when the actual appeal took place counsel for the respondent raised a preliminary objection contending that the appeal did not satisfy the requirement, and in those circumstances the Board held that the appeal should not proceed any further. See also Zahid Husain v. Mohammad Ismael (( 1930) L. R. 57 I. A. 186.). Those .were ex parte cases, whereas this was not, the respondent having opposed the petition for special leave. The Board is not bound by the Rs. 10,000, but where the value is under Rs. 10,000 there has to be some important question of law involved in the appeal. Here, the market value was under Rs. 10,000, and there being no important question of law, the appeal should not proceed. If the Board is of opinion that this not having been an ex parte application, objection cannot now be taken, that is an end of the point. When special leave to appeal is given it is always open to either party to argue further on the appeal, and it is difficult to see why at this stage, when all the facts are before the Board, it is not open to the respondent to raise this point if both in fact and in law the requirements of s. 110 are not satisfied.
Sir Herbert Cunliffe K.C. and Subba Row for the appellant. This question was before the Board when it granted special leave to appeal, and it is not now open to the respondent to challenge His Majestys exercise of the power.
[The Board directed the hearing of the appeal, which was concerned mainly with the factum of the adoption of the respondent, to continue.]
July 19. The judgment of their Lordships was delivered by Sir John Beaumont. This is an appeal from a judgment and decree of the High Court of Judicature at Madras, dated January 12, 1945, reversing a judgment and decree of the Subordinate Judge of Ramnad, dated August 11, 1943.
By an Order in Council, dated February 19, 1946, the appellant was granted special leave to appe
