G.B. Patnaik, J.
1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Berhampur, in a suit for declaration that plaintiff is the nearest reversioner of the last male holder G. Narasing Rao and is entitled to the property of said Sri Rao with further prayer that the so called adoption of defendant No. 1 to Late G. Narasing Rao by his widow Laxmikantamma is invalid and further the will executed by Laxmikantamma is not valid and binding on the plaintiff.
2. According to the plaint case, G. Narasing Rao died on 3-10-1949 without leaving any issue. His widow was Laxmikantamma. Plaintiff is the nearest reversioner of Narasing Rao being the nephew of Narasing Rao's sister's son Simachalapatirao. The said Simachalapatirao died at Berhampur on 15-10-1962, There is no other nearest heir of G. Narasing Rao other than the plaintiff. The plaintiff and his uncle Simachalapatirao filed Title Suit No. 19/50 (renumbered as T. S. 1/54) against the widow of Narasing Rao along with several other persons for a declaration that Laxmikantamma was not the legally married wife of Narasing Rao and as such was not entitled to the property of Narasing Rao and also for a declaration that the will executed by Laxmikantamma on 15-10-1949 was not valid and binding. In the said suit, it was held that Laxmikantamma was the legally married wife of late Narasing Rao. It was also found that plaintiff was the reversioner of late Narasing Rao. It was further found that the property which stood in the name of Narasing Rao was his property and the property which stood in the name of Laxmikantamma was her acquired property. So far as the will dated 15-10-1949 is concerned, it was found that the same was not valid and binding on the plaintiff. It was directed in the suit that Laxmikantamma would continue to be in possession of the property which stood in her name. So far as property of her husband is concerned, she would also continue to hold those properties subject to rendering accounts. Against the said decree, the paternal unc!e of the plaintiff had perferred an appeal to the High Court in forma pauperis, but that was dismissed for non-prosecution. According to the plaint allegations, defendant No. 2 was a shrewed man and after death of Narasing Rao forced his son into Narasing Rao's family on the basis of the illegal adoption alleged to have been made by Laxmikantammaafter the death of her husband. The said adoption is invalid in eye of law, there being no consent of the sapinda of late Narasing Rao and, therefore, the plaintiff was entitled to succeed to the property of late Narasing Rao as the nearest reversioner.
3. Defendants 1 and 2 filed a joint written statement denying the allegations made in the plaint. According to the written statement, the suit filed by the plaintiff and his paternal uncle (T. S. 19/50) renumbered as T. S. 1/54, was dismissed by the trial Court and the same was confirmed in appeal by the High Court. Thereafter the plaintiff and his uncle made desperate claims to the property of Narasing Rao. Laxmikantamma was the absolute owner of the property subsequent to the Hindu Succession Act coming into force. It was the specific plea of the defendants that Laxmikantamma took defendant No. 1 in adoption with the consent of the Sapinda and the relations of her husband and by adopting all formalities of giving and taking defendant No. 1 was duly adopted. Further a registered deed was executed on 24-4-1956 acknowledging the said adoption. Laxmikantamma had executed a Will Ext. H dated 22-12-1957 whereby she bequeathed all her stridhan in favour of defendant No. 1 and also half share of the property which she became entitled to as widow of Narasing Rao. Defendant No. 1 has thus become the sole owner of the property. All other allegations made in the plaint were denied.
4. On these pleadings, the learned Subordinate Judge framed seven issues and found as follows :--
(a) The plaintiff was the nearest reversioner of Narasing Rao;
(b) The oral evidence was overwhelming with regard to the actual ceremonies of adoption;
(c) Adoption ceremony was performed after due publicity and intimation to distant relations, friends and gentlemen;
(d) The plaintiff's allegation that the adoption deed was executed under coercion and Laxmikantamma had no independent advice in the matter of execution was futile;
(e) One Ranganaikulu, the uncle's son of G. Narasing Rao was the only agnate living then;
(f) Laxmikantamma had obtained due consent from the sapinda before adopting defendant No. 1;
(g) The will executed by Laxmikantamma was genuine and was intended to be acted upon;
On these findings, the suit was dismissed holding that the plaintiff was not entitled to any relief claimed in the suit.
5. Mr. P. V. Ramdas, the learned counsel for the appellant raises two submissions in support of this appeal and they are : --
(i) The parties admittedly being governed by Madras School of Hindu Law and there being no authority of Narasing Rao in favour of his wife Laxmikantamma for taking in adoption, any adoption without consent of the sapinda is invalid in the eyes of law;
(ii) The Will, Ext. H is an involuntary act and does not operate since it was not executed by Laxmikantamma after knowing the contents thereof.
Though the aforesaid two submissions were made by the learned counsel, it was also conceded that the second submission would arise for consideration only if it was found that the adoption of defendant No. 1 was invalid and therefore, we will consider the question regarding the validity of adoption first.
6. So far as the power of the widow to take in adoption, the law varies from State to State. We are concerned in this case with the legal position as it stood prior to the Hindu Adoptions and Maintenance Act came into force, the impugned adoption being prior to the enforcement of the said Act. In Mithila a widow cannot adopt at all even if she had the authority of her husband, but in Bengal, Benaras and Madras, a widow may adopt under an authority from her husband in that behalf and such authority may be express or implied. Further in Madras, a widow may also adopt without her husband's authority, if she obtains the consent of sapinda, where the husband was separate at the time of his death and consent of undivided coparcener where the husband is joint at the time of death. In Bombay, a widow may adopt even without any authority. The parties in the present case are governed by Madras School and, therefore, after death of Narasing Rao, his widow Laxmikantamma could validly take in adoption provided she had the authority of her husband or she had taken the consent of the sapinda, her husband admittedly living separate at the time of his death. It is nobody's case that Narasing Rao had given any authority for adoption. The case hinges therefore on the question whether Laxmikantamma had the consent of her husband's sapinda, her father-in-law being dead prior to the death of her husband. The law on the subject has been well discussed in a judgment of this Court in the case of Bodo Annanda Podhano v. DondoNaiko (since deceased) AIR 1952 Orissa 307 and in the case of G. Appaswami Chettiar v. R. Sarangapani Chettiar AIR 1978 SC 1051. Ranganaikulu who is stated to be the sapinda of G. Narasing Rao was dead by the time the present suit came up for hearing. The fact that he gave his consent to Laxmikantamma taking in adoption was proved through Ex. D, the letter written by him on 12-12-1950 and also his previous deposition in T. M. S. No. 37/54 (Ext.K). In Ext. D, Ranganaikulu has given his consent in favour of Laxmikantamma adopting a boy the only restriction being that the boy must be of their caste. Mr. Ramdas, the learned counsel for the appellant seriously challenged the genuineness of this document mainly on the ground that this document had not been referred to in any of the documents where the fact of obtaining the consent had been mentioned and according to him, that document was a manufactured one and subsequently obtained. This exhibit, as has been observed by the trial Court, bears the postal seal of 1950 and therefore, could not have been subsequently manufactured. It is no doubt true that in Ext. C, the deed of acceptance of adoption executed on 24-4-1956 as well as in Ext. H, the will executed on 22-11-1957, there has been no mention of this consent. Judged from that angle, the contention of Mr. Ramdas is not fully devoid of force, but it may be noted that in both these documents, it had been clearly mentioned that Laxmikantamma had received the consent of the sapinda of her husband before taking defendant No. 1 in adoption. Moreover, it is difficult to conceive that Ext. D could contain the postal seal of 1950, if, as suggested by Mr. Ramdas, it was subsequently manufactured. In that view of the matter, we are of the opinion that Ext. D was a valid consent given by the sapinda of Narasing Rao on 12-12-1950 and fully satisfies the pre-conditions for widow's authority to adopt under Madras School of Hindu Law. Mr. Ramdas further argued that the consent having been obtained in the year 1950 and the adoption having taken place long six years thereafter, the consent must be deemed to be invalid in law. According to him, the consent of a sapinda given to take in adoption can be acted upon within a reasonable time if the circumstances have not undergone any material alteration. As decided in the Full Bench decision in the case of (Kalaga) Annapurnamma v. (Kalaga) Appayya Sastri; AIR 1929 Mad 577, a lapse of six years cannot be said to be 'reasonable time'. In our view, the aforesaid Madras decision does not decide that the consent becomes invalid afterlapse of certain time. The assent of kinsman is required under law because of the presumed incapacity of woman for independent action. The sapinda acts as an adviser to the widow. The observation of the Orissa High Court in Bodo Annanda Podhano's case (supra) is quoted below in extenso
'.....It appears to me that when there isat any particular point of time the assent or authority of the sole kinsman or group of kinsmen who by their being the nearest reversioner or reversioners of the widow at the time, or by being her 'venerable protectors' are competent to authorise the act of adoption, give their consent or authority for the adoption by the widow that authority if adequate at the time, does not cease to be such by mere lapse of time during which one or other out of the group may have died. Consent or authority given by kinsmen adquate by itself to validate the adoption at the time, remains as such, if acted upon within a reasonable time, for the adequacy and validity depend on whether the consent is that of persons who by virtue of their relationship at the time can be said to be her protectors or natural guardians so as to supply the defect of the husband's authority and can also be said to be of such quality as to provide proof that the act to be done by the widow is for the discharge of a neglected religious duty.
If the consent was such at its inception, it does not cease to be so, merely because some fresh persons may have become the next reversioners'.
In this particular case, sufficient explanation has been offered as to why there was delay in adopting defendant No. 1, in that defendant No. 2, the natural father, was not readily agreeable. In our opinion, the act of the widow in the present case was proper and bona fide performance of a religious duty and neither capricious nor a corrupt motive. We, therefore, do not find any force in the submission of Mr. Ramdas. In view of abundance of evidence with regard to the factum of giving and taking, and ceremonies thereto as discussed in the judgment of the Subordinate Judge, Mr. Ramdas was not able to assail the same. It must, therefore, be held that defendant No. 1 was validly adopted by Laxmikantamma, the widow of Narasing Rao and as the adopted son, he is entitled to the properties of said Narasing Rao. In view of our findings on the question of adoption, it is not necessary for usto examine the second contention of Mr. Ramdas.
7. In the result, there is no merit in this appeal which is accordingly dismissed, but in the facts and circumstances of the case, there will be no order for costs.
P.C. Misra, J.
8. I agree.