Abayambal Ammal vs T. K. Rajarathna Ayyar and Others

Srinivasa Aiyangar, J.—The appeal is by defendant 4 and 5 and the only point for determination is as regards the validity of the adoption of

the plaintiff''s father by defendant, 1 to her husband in the year 1884. The fact that there was an adoption and that the requisite ceremonies were

performed has not been questioned and the only ground on which the validity of the adoption has been sought to be attacked in appeal is that at

the time of the adoption, the defendant 1 was only about 12i years, and, therefore, not capable of forming a proper judgment about the act of

adoption with regard to her own interests and the estate. On the evidence adduced before the learned Judge in the Court below, he has come to

the conclusion that she was a person fairly well educated even at that time and capable of forming an opinion with regard to the intended act on her

own interests and with regard to her husband''s estate. The adoption has been practically acquiesced in and treated as valid from that time and

every near relation and everybody concerned has agreed in treating the adoption as valid. There has been no evidence let in on behalf of the

appellants to show that the girl when making the adoption was not qualified to do the act. Especially having regard to the circumstance that the

adoption comes to be questioned after so many years, it is impossible to expect anything more than the kind of evidence that has been let in on

behalf of the plaintiff. It is well known that girls of 12, at least many of them, are precocious and having regard to the evidence adduced, it is

impossible to say that it has not been satisfactorily established that the girl was capable of taking the boy in adoption. As regards the boy himself

that was taken in adoption, it was her younger brother and the evidence is that he was chosen by the girl herself. We are not satisfied that the

conclusion arrived at by the learned Judge in this case was wrong.

Some other question has been raised with regard to certain items of immovable property which have been decreed to be delivered possession

of by -defendants 4 and 5. The decree passed making all the defendants liable for all the mesne profits of the estate is clearly wrong and the

several defendants should have been made liable for such profits in respect only of the items of property in their respective possession. The decree,

therefore, with regard to the profits is set aside and the lower Court will be directed to enquire with respect to the several items of property in the

possession of the respective defendants and make decrees for mesne profits only against such defendants and in respect of such properties. It is

now stated that some of the items of property in the possession of defendants 4 and 5 have been obtained by them in exchange for certain items of

property which belonged to them originally and which are now in the possession either of the plaintiff or of defendant 1. The lower Court will also

inquire whether that was so, and if it should so find, it will order delivery of the items of property in the possession of defendants 4 and 5 only on

the plaintiff delivering over to defendants 4 and 5 any such items, if in his possession. The appellants will pay the costs of defendant 1.