Subramania Ayyar, J.@mdashOne Govindan Nair and his younger brother Nanu Menon were, in the year 1892, the only surviving members of a
tarwad subject to the Marumakkatayam law. The former, who was the karnavan, adopted on the 21st April of that year four persons, viz., his son
Raman the first defend ant, and his daughter Lakshmi the second defendant, and her children Paru and Krishnan the sixth and the seventh
defendants. He made the adoptions without the express or implied consent of Nanu Menon, who had, prior to the date of the adoptions, been for
many years on unfriendly terms with his brother, in June 1892 Govindan Nair died. Subsequently Nanu Menon brought the suit, out of which this
appeal arose, for a declaration that the said adoptions were invalid, for possession of the property which had been held and managed by Govindan
Nair as the karnavan and for certain minor reliefs. In the Court below, he got a decree for the property, etc., but his prayer as to the adoptions
was not granted. He preferred this appeal chiefly against such refusal to declare them to be invalid. After the appeal was presented, he having died
leaving a will making certain dispositions of the property to which he was solely entitled if the adoptions in question be found to be invalid, his
executor was admitted as the legal representative for prosecuting the appeal.
2. On the one side, the adoptions were impeached, among other grounds, for the reason that one essential requisite for a valid adoption, viz., the
assent of all the members of a tarwad was wanting in this case, inasmuch as Nanu Menon had not consented. On the other side, it was urged that
such consent was unnecessary since Govindan Nair, as karnavan, had sole authority in the matter. Without entering into the question whether the
consent of All. or only that of the majority of, the members of a tarwad is necessary, it is sufficient for the purposes of this case to determine
whether the latter contention is sound.
3. No decision of this Court or of the local Courts directly bearing on that contention was cited.
4. Nor has any satisfactory evidence been adduced to show that actual usage of the people is in favour of the view urged on behalf of the
defendants. The evidence as to custom, called for them, is that of their ninth, tenth and eleventh witnesses. The first of. those, the Zamorin of
Calicut, was not very consistent in the evidence he gave. At first he stated that the karnavan can adopt without the consent of his anandravan. But
later on, he qualified this statement by adding that if the anandravan was neither an outcaste nor an insane person, his assent also was necessary.
He, however, again changed his answer and adhered to his original statement. The tenth witness, a Nambudri, was more positive in asserting that
an anandravan''s consent was unnecessary. The eleventh witness, another Brahman, gave it as his opinion that a karnavan was untitled to adopt,
even against the will of the anandravans. But he contradicted himself as to a point intimately connected with that under consideration, viz., the
question whether, if a karnavan was opposed to any adoption being made, but the anandravans insisted upon one, whose will should prevail? As
to this in his chief examination the witness observed that the adoption should take place in spite of the karnavan''s dissent. But in cross-examination
he said it should not a statement which was subsequently retracted. None of the three witnesses was able to speak even to a single instance in
which a karnavan did in fact adopt without the consent of his anandravan or anandravans. Without such corroboration, the bare opinions of these
witnesses are hardly of much value.
5. Nor does the evidence on the other side throw any light on the, question. The documentary evidence, which consists of Exhibits UUU, VVV
WWW, only shows that, in each of the cases to which they relate, all the persons interested in the particular adoption concurred in it. But it would
be wrong to accept such inconclusive conduct in so very few cases as evidence of a general consciousness on the part of the people that without
the consent of his anandravan a karnavan cannot adopt. As to the oral evidence neither the third nor the tenth witness, relied upon, possesses any
special qualifications that would lend weight to their view that the karnavan alone cannot act in the matter.
6. In the absence, therefore, of judicial decisions or satisfactory proof of custom for or against the defendants'' contention, the question has to be
dealt with on principle.
7. But before doing so, it will be convenient to say a few words with reference to an authority, cited as one distinctly in favour of the defendants,
viz., paragraph 403 of Mr. Justice STRANGE''S Manual of Hindu Law, second edition, published in 1863, which contains the statement that ""on
failure of the sister''s progeny male and female, the head of the family may make adoption."" If it were clear that, in penning the words just quoted,
the learned author had in contemplation a case like the present, his opinion, though unsupported by any other authority than his own, would having
regard to his great experience of the people of Malabar be entitled to much weight. But in the passage in question, the author merely glances at the
general subject of adoption in Marumakkatayam families, and seems to mean nothing more than that when a tarwad finds it necessary to make an
adoption, it acts through its chief member--the karnavan. That a question, like the one now under discussion, was present to the mind of the
author, there is nothing in the paragraph itself to suggest. Consequently, the passage relied on, cannot he treated as an authority in favour of the
view for which it was cited.
8. HOW then does, the matter stand on principle? No doubt, a karnavan posesses, under the law, large powers with reference to the concerns of
his tarwad. He is by birth the head of the family, holds possession of its property, receives the income and distributes the same according to his
own discretion among those under his protection. and no doubt, in transactions with outsiders as well as in litigation with such persons, he generally
represents the family. But it does not follow that he possesses similar independent authority with reference to adoptions into the family. For the
powers just above referred to, are obviously all more or less connected with management only; whereas adoption, on the other hand, is an act
which clearly falls outside the scope of mere management. Such affiliation involves bringing in strangers into a tarwad and the exercise of the power
so to affect its very constitution is prima facie not a matter to be entrusted to any one member, however prominent the position he occupies in that
body is. Here it may he asked, is not a similar power vested in a father of a Hindu family to whom a karnavan has been compared? Vide in ravanni
Revivarman v. Ittapu Revivarman ILR 1 Mad. 153 . It is true that such a father has full authority to sanction the introduction of a stranger into the
family by empowering a widow of one of his sons to make an adoption to her husband, But that exceptional power of the father rests upon a
special provision of the Hindu law, So far therefore as the present question goes, there appears to be no analogy between the father, and the
karnavan. Moreover, considering that, unlike under the Hindu law, a practically unlimited number of persons of both sexes can be adopted under
the Marumakkatayam system, it is scarcely necessary to point out that the power in question, if it were exercisable by a karnavan alone, is, should
be happen to be an unscrupulous man, capable of being used by him with impunity so as to cause serious detriment to the other members of his
tarwad.
9. In these circumstances, with every desire not to weaken the established authority of a karnavan, one cannot, especially when called upon to lay
down almost for the first time a definite rule on the subject, ignore altogether the inexpediency of recognising that a karnavan by himself is entitled
to adopt; since that would only add one fresh ground for discord and dissension between a karnavan and those subject to his authority, of which
the constant conflict of the former''s interest with his duty referred to in Eravanni Revivarman v. Ittapu Rcvivarman ILR 1 Mad. 153 is a fruitful
cause, and which are said to be so rife in many families in different parts of Malabar.
10. Before concluding this discussion, it remains be notice an argument urged on behalf of defendants, viz., that should it be found that an adoption
made by a karnavan was, having regard to all the circumstances of the case, prejudicial to the true interests of the other members of the tarwad, it
is open to a Court to cancel the same, as it would cancel a sale of property belonging to the family but improperly alienated by a karnavan without
the assent of the other members. It is hardly necessary to say that there is more than one solid distinction between the two classes of cases. In the
first place, it cannot be denied that, under certain circumstances, the power to transfer, even by way of sale, is part of the powers of a manager like
a karnavan compare the observations in Kalliyani v. Narayana ILR 9 Mad. 266 whereas, as already pointed out, the power to import strangers
into the family by adoption is essentially of a different and higher nature. In the second place, while the Courts, in interfering with an unwarranted
transfer of property by a karnavan, exercise, a jurisdiction, on the whole beneficial to the family, they would be instruments of doing little but harm
if they are also required to set aside adoptions, not on the ground that they contravene some definite rule of law, such as that relating to the
vamsam or tribe of the person to be adopted, but on the ground of the undesirable ness of the adoption, the unsuitability of the person or persons
selected, or for other like reasons. Surely these are matters for the final decision of the party making the adoption. To leave such questions open
for adjudication by Courts cannot but introduce a mischievous element of uncertainty and doubt as to the status of the persons adopted, operate as
a premium to vexatious litigation, and, above all, throw upon the tribunals a duty that, from its very nature, they are not in a position to discharge
satisfactorily.
11. It would seem, therefore, that the view, that a karnavan, at his sole unfettered discretion, can adopt, finds little or no support even in principle.
and as on this ground the adoptions in question fail, it is unnecessary to consider the other reasons urged against their validity.
12. The only other point to be noticed is the objection taken by the appellant as to the amount of damages awarded in respect of certain materials
of a dilapidated building. removed and used by the defendants. There is no good reason to think that those materials were worth more than the
sum granted by the Subordinate Judge.
13. The decree of the lower Court will be modified by declaring that the adoptions are invalid, and in other respects it must be confirmed. The
respondents will pay the appellant''s costs here.
Davies, J.
14. I quite agree in the conclusions of my learned colleague. I would, however, add two additional reasons in support of the view we have taken
on general principles, namely, that the karnavan as such has not the sole power to make an adoption.
15. In the first place, there has been no attempt to prove that a legal or moral obligation is cast on the member or members of a moribund tarwad
to make an adoption. On the contrary, the witnesses in the case do not go further than saying it is proper--not that it is obligatory, This is confirmed
by the fact that the practice is by no means universal or there would not be the frequent escheats to the State of tarwad property for want of a
successor. The making of an adoption then being optional, how can the karnavan, without the consent of his anandravans, forestall them and
deprive them of that option which in the nature of things must reside in the last surviving member or members of the tarwad? If they should agree
there is an end of the matter, but if they do not agree, the karnavan in acting on his sole authority is arrogating to himself a power of making a final
disposition of the family property. The powers of a karnavan are great, but none of the powers so far recognized in him is so large as that now
claimed for him. It is tantamount to allowing him to make a gift of the tarwad property, which he cannot ordinarily do.
16. and in the second place, even if it be obligatory, there is no actual necessity for making the adoption until the tarwad is reduced to a single
member. As the occasion for the exercise of the power really arises only then, it would seem to follow that the right, when disputed, must be held
necessarily to vest in the last surviving member. The necessity has then become absolute.
