Validity of adoption of paternal grand mother’s sister’s son’s daughter son.

The suit out of which this appeal arises related to the properties of one Krishnaswami Iyengar, who died leaving a daughter Kanagathammal. Kanagathammal married Doraiswami Iyengar. There was no issue of the marriage and the 1st defendant claimed to be her adopted son, he having been adopted by her husband Doraiswami Iyengar in 1920. The plaintiff, claiming to be the reversioner of Krishnaswami Iyengar, sought to recover the properties and contested the factum and validity of the adoption of the 1st defendant. That the adoption did take place both the Courts have found to be true and the validity of the adoption alone is sought to be attacked in this appeal. The invalidity is based on the rule of prohibition that no one can be adopted whose mother in her maiden state the adopter could not have legally married, the contention being that the 1st defendant’s natural mother Rukmani Ammal was within the prohibited degrees of marriage, as Rukmani Ammal was Doraisami Iyengar’s paternal grandmother’s sister’s son’s daughter. The parties being Brahmins the rule that a legal marriage should be possible between the adoptive father and the natural mother applied to the present case.

After the Full Bench decision in Minakshi v. Ramanada1 and the Privy Council decision in Bhagwan Singh v. Bhagwati Singh2, the rule derived from the Hindu Law texts that there cannot be a valid adoption unless a legal marriage was possible between the natural mother of the boy and the adoptive father has been held to apply to the three regenerate classes among Hindus. But the rule is subject to exceptions, such exceptions being based on custom to the contrary. Even prior to the decision in Minakshi v. Ramanada1 in Vayidinada v. Appu3 it was held that a custom existed in Southern India among Brahmins of adpoting a sister’s son or daughter’s son, though a sister or daughter is obviously within the prohibited degrees of marriage. In Simhadri v. Satyanarayana4, the adoption of a boy whose mother belonged to the same gotra as that of the adoptive father was held to be valid on the strength of custom permitting such an adoption in the community to which the parties there belonged, namely, Kshatriya community. Sir Lionel Leach, C.J., observed as follows at page 485:

“It would, in our opinion, be unjust to enforce the rule where the adoptive father and the natural mother of the boy are cousins many times removed, as here when the prohibition is completely disregarded where there is such near relationship as in the case of the daughter’s son, the sister’s son and the mother’s sister’s son.”

While there is authority in Vayidinada v. Appu1 for the adoption of a daughter’s or sister’s son in Southern India among Brahmins, in so far as the mother’s sister’s son is concerned, the matter did not come up for consideration by Court and was not the subject-matter of a decision. In Bhagwati Singh v. Bhagwati Singh2, the adoption of a mother’s sister’s son by a Hindu of any of the three regenerate classes was held contrary to law and void equally with the adoption of a daughter’s son or a sister’s son. In that case there was no suggestion of a special custom and the Judicial Committee observed that the rule was subject to any of the special customs, which might be pleaded and must be proved by evidence of what actually was done. But it was found that there was no such special plea in that case.

Whatever may be the position as regards a mother’s sister’s son, the custom that has been found to exist among the Brahmin community to permit the adoption of a daughter’s son has been extended to the case of a brother’s daughter’s son in Appayya Bhattar v. Vengu Bhatta3 where Subramania Ayyar and Benson, JJ., referring to the decision in Vayidinada v. Appu1 pointed out that though the decision in that case related to the validity of the adoption of a daughter’s or sister’s son yet the case actually before the Court was that of a brother’s daughter’s son, and observed:

“We must take it