1. Plaintiff is the appellant. The suit was filed for a declaration that the adoption of the defendant by Atchamma, the widow of Ganna Peda Veeraiali was invalid and not binding op the reversioners to the estate of Pongajah, the brother of the plaintiff's grand-father. The truth and validity of the adoption was challenged in the plaint. The widow contended that the adoption was made on 29-12-50 and that a registered adoption deed was duly executed. She further contended that as her husband's brothers, China Veeraiah and Bangaraiah improperly refused to give consent, she obtained the consent of the next remote reversioner Venkaiah, examined as D.W. 2.
The Court below held on appreciation of the evidence that the adoption took place on 29-12-1950. It further held that China Veeraiah and Bangaraiah wrongly withheld their consent under Exs. B-2 and B-3. The learned Judge accepted the evidence of the defendant's witnesses that Venkaiah and Balaiah were the brothers of Venkataian the father-in-law of Achamma. So, the consent given by Venkaiah was held to be sufficient for making a vaiid adoption. The contention that the daughter's daughter's son could not be adopted by Achamma was negatived. The plaintiff has consequently preferred the appeal to this Court.
2. Shri Konda Kotaiah, the learned advocate for the appellant reiterated the contentions that were raised in the Court below. The first contention raised by him was that the adoption has not been duly proved. The adoptive mother was examined as D.W. 1. The natural father of the boy was examined as D.W. 4. The purohit was examined as D.W. 5. A respectable neighbour was examined as D.W. 3 to speak to the fact of giving and taking. The adoption deed itself is marked as Ex. B-6. The Court below accepted the evidence of the defendant's witnesses and held that there was a valid giving and taking of the boy. The mere fact that giving and taking took place after the execution of adoption deed does not lead us to the conclusion that there was no valid giving and taking of the boy. We, therefore, uphold the finding of the learned Subordinate Judge that the adoption as a fact took place.
3. The next question is whether the consent was wrongly withheld by China Veeraiah and Bangaraiah under Exs. B-2 and B-3. The objection raised by Bangaraiah for the adoption of the defendant was that he was only daughter's daughter's son and not a member of the aganatic family. It also appears that as the plaintiff herein his son-in-law, would not succeed to the estate of Pongaiah, the father of Achamma by reason of the adoption, he abstained from giving consent. We are inclined to agree with the Subordinate Judge that Bangaraiah s refusal to give consent was not valid. So far as China Veeraiah was concerned, he had only two sons.
One of them was married and the other son he refused to give in adoption according to the evidence of the widow D.W. 1. The statement in Ex. B-2 that there were about 20 boys available in the agnatic family of Peda Veeraiah is not borne out by the evidence. Bangaraiah, examined as D.W. 2 stated that there were only two boys available for adoption viz., China Veeraiah's sons. From the evidence of the widow, it appears that one of the sons was already married and that Veeraiah refused to give the second in adoption. We are, therefore, clearly of the opinion that the consent was wrongly refused by the nearest reversioners.
4. The next question that falls to be determined is whether Venkataiah, the father-in-law of Achamma, had two brothers Venkaiah and Balaiah and whether Venkaiah who gave consent to the adoption is the brother's son of Venkataiah. Even though in the adoption deed it was expressly recited that Venkaiah had given consent it was not stated in the plaint that Venkaiah was not a reversioner. The positive testimony on behalf of the defendant is that Venkaiah is the brother's son of Venkataiah.
We accept that evidence. Bangaraiah no doubt stated that his father had no brothers. We are not inclined to accept his evidence as he is interested in his son-in-law the plaintiff. As the consent of the next-nearest reversioner Venkaiah had been obtained, we have no doubt that the adoption is valid in law. The mere fact that remoter reversioner such as Peda Mallaiah, Bhushaiah's sons and others had also given consent does not in any way affect the consent given by Venkaiah the nearest reversioner.
5. The last question that fills to be decided is whether the adoption made by Achamma of her daughter's daughter's sou is prohibited by law. Shri Konda Kotaiah learned advocate for the appellant contended that the adoption was invalid by reason of the application of Nandapandita's rule that no one can be adopted whose mother in her maiden state the adoptive father could not have legally married. The contention based on Nandapandita's rule was not raised in the plaint. It is admitted that the parties do not belong to regenerate classes but are sudras. The community to which they be-long is known as Perika Community. In China Nagayya v. Peda Nagayya, ILR 1 Mad 62 it was held that Nandapandita's rule is not applicable to Sudras.
In Bhagwan Singh v. Bhagwan Singh, ILR 21 All 412 (PC) this position of law is recognised at page 417. It was agreed before the Privy Council that the prohibition based on Nandapandita's rule 'extended only to the throe twice-born classes and not to the most numerous class of all, the Sudras.' In Mayne's Treatise on Hindu Law and Usage, 11th Edition, it is stated that the respective rule applies only to the three higher classes but not the Sudras. In Mulla's Hindu Law at page 584 it is stated that the prohibition referred to supra docs not apply to Sudras. The contention of Shri Konda Kotaiah fails on this main ground.
6. The Court below following the decision in Simhadri Raju v. Satyanarayana Pantulu, AIR 1945 Mad 487 held that the rule under the Hindu law that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state has been set at naught by custom in Southern India and that the adoption of a boy whose mother was of the same gotra as that of the adoptive father is not valid.
The learned Judges referred to several instances in which the custom was proved and observed that it was '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.' There is no doubt on the basis of that decision, the rule would not be applicable to a case of this description.
7. Apart from that, there is evidence in the case that there is a custom in the community of adopting the daughter's son. D.Ws. 2 and 3 speak to that custom. Those witnesses were not cross-examined on this point. Moreover, the witnesses depose that in the particular community, it was permissible to marry a daughter's daughter. Shri Konda Kotaiah, relying upon a decision of the Madras High Court in Balusami v. Balakrishna, : AIR1957Mad97 , contends that the custom regarding marriage being opposed to decency and morality should not be recognised. It is not necessary for us to decide whether the custom of marriage is made out and whether it should be duly recognised. On the evidence on record we come to the conclusion that the custom of adopting the daughter's daughter's son is made out.
8. Reference was made to a recent decision of this Court in Deoki Nandan v. Madanlal, (1957) 2 Andh WR 358: (AIR 1958 Andh Pra 693) to the effect that the rule laid down by Nandapandita was only recommendatory and not mandatory and that a person standing in the relationship of an uncle could be adopted by nephew. Shri Konda Kotaiah, learned advocate for the appellant, contended that the decision was wrong and the matter should be referred to a Full Bench. The Full Bench decision of the Madras High Court in Minakshi v. Ramanada, ILR 11 Mad 49 definitely lays down that Nandapandita's rule ought not to be violated.
This was followed by the Privy Council in ILR 21 All 412. Lord Hobhouse stated in uneqiuivocal terms at page 424 that for 80 or 90 Years there has been a steady current of authorities one way in all parts of India and that
'it has been decided that the precepts condemning adoptions such as the one made in this case are not monitory only, but are positive prohibitions and that their effect is to make such adoptions wholly void.'
We are inclined to take the view that due consideration has not been given by the division Bench to those two decisions though referred to them. The decision of the Privy Council in Puttulal v. Mt. Parbati Kunwar, 29 Mad LJ 63: (AIR 1915 PC 15) has no direct application.
The question that arose for consideration was whether the rule laid down by Nandapandita that a widow cannot lawfully adopt her brother's son or grandson is an extension of the Hindu Law that no one can be adopted as a son, whose mother the adopter could not have legally married. Sir John Edge stated at page 69 (of Mad LJ): (at p. 17 of AIR) that it has not been shown to their Lordships that the extension by Nandapandita had been accepted as law in India at least so far as adoptions by widows to their husbands were concerned.
9. There is, therefore, considerable force in the contention of Shri Konda Kotaiah that the decision requires reconsideration. But as the question does not directly arise for consideration in this appeal where we are dealing only with Sudras, we do not think it necessary to refer the matter to a Full Bench. We agree with the conclusions arrived at by the Subordinate Judge and dismiss the appeal with costs.