Judgement Appeal from a decree of the High Court (Sept. 15, 1896) reversing the decree of the Subordinate Judge of Malabar at Calicut (March 31, 1894) upon the question under appeal, namely, that of adoption. The suit was between Nairs, in South Malabar, who are governed by Malabar law. The plaintiff, who was the last member of his taravad, sued to set aside a document by which his deceased elder brother, who during his life was the karnavan of the taravad, had adopted the defendants 1, 2, 6, and 7 as members of the taravad and heirs to his property. The adoption was found to be valid by the original Court. The decision was reversed by the High Court on the ground that the consent of the plaintiff, the only anandravan, ought to have been obtained. No decisions bearing upon the subject of adoptions by members of a Marumakkathayam family were produced by either side in the Courts below or before their Lordships, but evidence upon the subject was offered on both sides, the effect of which is sufficiently stated in the judgment of their Lordships. The Subordinate Judge found that the circumstances of the family were such as to render an adoption 6 Law. Rep. 27 Ind. App. 231 ( 1899- 1900) Thiruthipalli Raman Menon v. Variangattil Palisseri Raman 97 necessary, and that, although the junior member would have a right to object to an improper adoption, the absence of consent did not invalidate one which was in other respects proper. He held, however, that the plaintiff, as senior member of the family reconstituted by the adoptions, was the karnavan, and as such was entitled to possession and management of the property. The High Court, on the other hand, held—1st. That there was no decision of the Courts in support of the defendants contention that the karnavan of a taravad had absolute power to adopt into his taravad without the consent of the other members of such body. 2nd. That the defendants had failed to prove any custom establishing such a power in the karnavan. 3rd. That there was no decision of the Courts in support of the defendants contention that the karnavan of a taravad had absolute power to adopt into his taravad without the consent of the other members of such body. 2nd. That the defendants had failed to prove any custom establishing such a power in the karnavan. 3rd. That on principle, and seeing that under the Marumakkathayam system of law which governed the parties an unlimited number of persons of both sexes could be adopted, it did not seem right to hold that such a power resided in the karnavan alone, and could be exercised by him either without the consent or against the expressed wish of his co-sharers. Davies J. held that the power to adopt only arose when the family was reduced to a single member incapable of bearing issue, when the necessity to adopt for the purpose of continuing the family, if such a necessity ever existed, would become absolute. Mayne, and C. W. Arathoon, for the appellants, contended that the decision of the High Court rested on the principle that an adoption was outside the scope of a karnavans authority; that it dealt with interests other than his own, which required the consent of the parties affected by it. It was contended that there was no distinction to be drawn between the power of adoption possessed by the karnavan of a Malabar taravad and that possessed by the father of a joint Hindu family. Adoption on the west coast of Madras depends on the habit of polyandry, and on the family system arising out of that practice. This system was described by the late Muttusami Iyer, judge of the High Court at Madras, in a memorandum containing a clear summary of Malabar law and appended to the report of the Malabar Marriage Law Commission of which he was the President see p. 49 of the report. That description is as follows " In its simplest form a taravad or Marumakkathayam family consists of a mother and her children living together with the maternal uncle as their karnavan. That description is as follows " In its simplest form a taravad or Marumakkathayam family consists of a mother and her children living together with the maternal uncle as their karnavan. In its complex form it consists of several mothers and their children or their descendants in the female line, all tracing their descent from a common female ancestor and living together as a joint family in subjection to the power and under the guidance and control of the senior male for the time being as its head or representative. The link of relationship is descent from a common female ancestor, and the bond of family union is subjection to a common karnavan. The notion of taravad property is that the entire family is its owner, that it is impartible except by common consent, and that each individual member is entitled to be maintained in his or her taravad home and to the fruits of joint beneficial enjoyment. The joint family is called a taravad, and each of the mothers and her children and descendants in the female line constituting the taravad is called a taivali or the line of a single mother. In its secondary sense the term refers, to a branch of the family having separate possession of a portion of the family property for convenience of enjoyment without prejudice to the unity of taravad interest or to the general control of the taravad karnavan. The term includes also a branch holding self-acquired property and at the same time retaining its joint interest in taravad property. If the taravad is broken up by partition made by common consent, each branch is called a new or branch taravad and the divided kinsmen are called attaladakkan or reversionary heirs. It is noteworthy that the relation of husband and wife, or of father and child, is not inherent in the conception of a Marumakkathayam family. In cases in which a Nayar woman resides with her husband, it is still considered to be in accordance with immemorial usage to send her back to her own taravad immediately after or very shortly before his death, and not to remove his corpse for cremation until she is first sent away. The person that begot a child on a Marumakkathayam female was originally regarded as a casual visitor, and the sexual relation depended for its continuance on 6 Law. Rep. 27 Ind. App. The person that begot a child on a Marumakkathayam female was originally regarded as a casual visitor, and the sexual relation depended for its continuance on 6 Law. Rep. 27 Ind. App. 231 ( 1899- 1900) Thiruthipalli Raman Menon v. Variangattil Palisseri Raman 98 mutual consent." In adoption, according to some systems, you adopt a female and then appoint a male to be the manager. According to others, a female is adopted and becomes manager also See Wigrams Malabar Law, 11, 12 ; Stranges Manual of Hindu Law, sect. 403. There are no sacred books of the old Malabar law, Reference was made to Munda Chetti v. Timmaju Hensu (( 1863) 1 Mad. H.C.R. 380, 383.); Subramanyan v. Paramaswaran (( 1887) Ind. L. R. 11 Mad. 116, 119.), in which case the parties were subject to Marumakkathayam law, and the validity of a male adoption is discussed. Marumakkathayam means descent in the line of a nephew or sisters son in opposition to Makkathayam, which means descent in the line of sons. The necessity to adopt arises because otherwise the family would become extinct, for without adoption the property would get into the hands of the last survivor, and then the family would be extinct, and the property could be alienated by the last survivor either by gift or testament, unless escheat is enforced see Vasudevan v. Secretary of State for India (( 1887) Ind. L. R. 11 Mad. 157, 170.); Alami v. Komu. (( 1888) Lid. L. R. 12 Mad. 126.) As to the status and functions of a taravad and powers of a karnavan Varanakot v. Varanakot (( 1880) Ind. L. R. 2 Mad. 330.); Kalliyani v. Narayana. (( 1885) Ind. L. R. 9 Mad. 266.) The fact that the younger brother withheld his consent is not enough to invalidate an adoption. The Nairs, have religious ceremonies, and it is a necessary duty to adopt, which is not to be omitted because of capricious opposition. Branson, for the respondent, contended that the High Court] was right in finding on the evidence that the appellants had failed to prove the existence of any custom giving the karnavan the right, either without the consent or against the wish of the other members of the taravad, to adopt any person he chose into the taravad. Branson, for the respondent, contended that the High Court] was right in finding on the evidence that the appellants had failed to prove the existence of any custom giving the karnavan the right, either without the consent or against the wish of the other members of the taravad, to adopt any person he chose into the taravad. There is no sufficient authority in law to establish the doctrine that the right of adoption into a family belonging to the Nair tribe is vested in the karnavan alone. Even if he possessed that right on any analogy to a Hindu father, by the ordinary Hindu law, it is not shewn to be exercisable by him, either by law or custom, without the consent or against the wishes of the other members of the taravad. The right to adopt is only absolute and exercisable at the option of the karnavan when he happens to be the sole surviving member of the taravad, after all hope of issue from the females of the taravad is extinct. The Subordinate Judge was right in holding that the respondent as representing his father was entitled to the properties in dispute, since his father was, on failure of these adoptions, the sole surviving member of the taravad. Mayne replied. The judgment of their Lordships was delivered by LORD LINDLEY. The question raised by this appeal is whether the elder of two brothers, who were the two surviving members of their taravad and the elder of whom was its karnavan, was entitled to adopt four persons so as to make them members of the taravad without the consent of the younger brother. The younger brother after the death of the elder sued to set aside the adoption. The adoption was declared valid by the Court of first instance, but this decision was reversed by the High Court of Madras. The persons adopted have appealed from this decision to Her Majesty in Council. The younger brother has died since the action was commenced, and has left a will, and the real controversy between the parties is to whom the property of the taravad belongs. This controversy, however, is not now before their Lordships for adjudication. The only question before them is whether the High Court of Madras was right in deciding the adoption to be invalid. This controversy, however, is not now before their Lordships for adjudication. The only question before them is whether the High Court of Madras was right in deciding the adoption to be invalid. The litigation is between Nairs in South Malabar, and has to be decided according to the laws and usages of those persons. Those laws and usages are very peculiar; some of them are so well 6 Law. Rep. 27 Ind. App. 231 ( 1899- 1900) Thiruthipalli Raman Menon v. Variangattil Palisseri Raman 99 established as to be judicially noticed without proof. But others of them are still in that stage in which proof of them is required before they can be judicially recognised and enforced. The Nairs are persons amongst whom polyandry is legally recognised; and descent of property through females is acknowledged law. A right (and perhaps duty) to adopt females into the family or taravad when necessary to preserve it appears also to be in accordance with their law. Speaking generally, it may be safe to say that this right is vested in the karnavan or head of the family. This is so stated in Stranges Manual of Hindu Law, sect. 403. So far their Lordships are prepared to assume the law peculiar to the Nairs to be established, and not to require proof in any particular case. But beyond this they are not prepared to go. The passage in Stranges Manual does not really mean more than above stated. There is no sacred book or other writing having legal authority, and there is no series of decisions which can be appealed to in order to determine the circumstances under which, and the consents, if any, subject to which the karnavan for the time being can adopt strangers into the family, and thereby make them and their descendants heirs to its property. Their Lordships are clearly of opinion that under these circumstances the burden of proving the validity of the adoption made in this case is upon those who assert its validity; and that the only question which their Lordships have to consider is whether the appellants have shewn that the adoption in dispute in these proceedings is in accordance with the law or custom of the Nairs. Mr. Mr. Mayne in his very able argument drew attention to all the authorities bearing on the point, and to some previous adoption deeds, and to the verbal evidence adduced by the parties in this particular case. The authorities and adoption deeds do not really come nearly up to what is wanted; not one of them shews that a karnavan ever adopted a stranger into the family without consulting the other members of it. The witnesses called at the trial certainly do not prove any custom warranting such an adoption. The witnesses called by the plaintiffs distinctly negative it. Those called by the defendant say in chief that the custom goes this length; but not one of them can give an instance in which he knew it was done. The witnesses are the ninth, tenth, and eleventh. The ninth, the Rajah of Calicut, however, stated distinctly in re-examination that the karnavan in such a case as that before the Court could not adopt without the consent of his brother, unless he was an outcaste or insane. Upon such evidence it appears to their Lordships that the balance is against and not in favour of the validity of the adoption which they have to consider. Certainly its validity is far from being established. Large as the powers of a karnavan appear to be, those powers are essentially powers of management. He cannot apparently alienate the family property without the consent of the other members of the family (anandravans), although an unreasonable wrongheaded opposition may probably be overruled. His limited power of alienation renders it improbable that he should have the wide power of adoption contended for by the appellants, the power, i.e., without consulting other members of the family, of introducing strangers into the taravad and making them heirs to its property. Such a power may be essential to the preservation of the taravad when the last possible karnavan has been reached, but the possession of such a power by any karnavan who is not the last surviving head of his taravad seems to their Lordships to be unnecessary, and to be unjust to those members of the family who may survive him and become karnavans in their turn. In the absence of proof, it would be contrary to sound legal principles to hold that any such power was conferred by any alleged custom. In the absence of proof, it would be contrary to sound legal principles to hold that any such power was conferred by any alleged custom. Their Lordships are of opinion that the decision of the High Court is correct, and they will humbly advise Her Majesty that this appeal should be dismissed. The appellants will pay the costs.