Jagannadha Das, C.J.
1. These three second appeals arise out of three suits which have been tried analogously and are covered by a common judgment in each of the two courts below. The plaintiff, as well as defendants 2 to 6, are the same in all the three suits, but the 1st defendant is different in each. The plaintiff is the appellant before us, while the defendants are the respondents. The common plaintiff is the brother of one Satyananda Podhan, the last male-holder of the suit property. He left him surviving (apart from the plaintiff), his widow the 2nd defendant, and the widow of his only pre-deceased son, the 3rd defendant. Defendants 4, 5 and 6 are the daughters of the third defendant.
Deft. 1 in each of the cases is an alienee from defendants 2 and 6 of certain items of properties of the last male-holder under sale deeds, Exts. C, D, and E dated consecutively 4th, 5th and 6th April 1941. The plaintiff as the next reversioner of the last male-holder has brought the suits for a declaration that these sale deeds are without any legal necessity and that they are not valid and binding upon him. The defence in all the three suits is two-fold, viz., (1) The sale deeds have been executed for legal necessity and are hence valid and binding on the reversioner; (2) Under the authority given by the last male-holder, viz., Satyananda Podhano, his daughter-in-law, the third defendant, duly and validly adopted one Gadadhar Podhano and that therefore the plaintiff has no locus standi to maintain the suit. The plaintiff in his turn challenged both the factum and validity of the adoption. Thus, the two questions raised in the case are as to (1) the adoption, and (2) the binding character of the alienations.
2. On the question of legal necessity for the three sale deeds, both the courts below have concurrently found that so far as Ext. E is concerned, there is no legal necessity at all, while so far as Ext. D is concerned, the legal necessity has been made out for about Rs. 715 out of the consideration of Rs. 750/- mentioned in the sale deed. In respect however of Ext. C, the trial court has held that necessity has been established only for a sum of about Rs. 385/- out of the total consideration of Rs. 765/- but the Appellate Court was inclined to think that the major portion of the consideration under the sale deed was for legal necessity. On the question of adoption, both the courts below have concurrently found that the adoption was true as a fact and valid in law. On the above conclusions, the suits have been dismissed by both the courts below and hence these three appeals by the plaintiff.
3. The question which has been very strenuously argued before us by learned counsel for the appellant is the one relating to adoption. He accepted the concurrent findings of the Courts below in favour of the factum of adoption, but challenged its correctness so far as the legal validity thereof is concerned. It is undisputed that the adoption has been made by D-3 after the death of her husband and after the death of her father-in-law the last male-holder. The validity of the adoption has been supported with reference to the deed of authority for adoption, Ext. K dated 6-2-40 executed by the father-in-law in favour of 3rd defendant sometime before his death. Learned counsel for the appellant urges that (1) the parties are governed by the Benares School of Law under which adoption by a widow cannot be supported excepting under the specific authority of the husband; (2) that, in any case, the authority of the father-in-law did not amount to the requisite consent of a sapinda which can validate the adoption under the Madras School of law relating to adoptions. The first point, though raised has been faintly argued and it is clear that it is untenable. The parties are Oriyas and belong to the Ganjam District which was a part of the Province of Madras prior to 1936. In respect of the Oriyas of the ex-Madras area, it has been assumed by the Privy Council as early as in 'RAGHUNADA DEO v. PATTA DEO', 1 Mad 69 at p. 78 that the Dravida School of law prevails. This assumption is based on the dicta of the Privy Council in the earlier leading decision viz., 'THE COLLECTOR OP MADURA v. MOOTTOO RAMA-LINGA SETHUPATHY', 12 Moo Ind App 397 at p. 433. In that case, their Lordships laid down relying on Sir Thomas Strange's 'Hindu Law' Vol. I, p. 79, as follows:
'According to the doctrine of the Banaras and Maharastra Schools, prevailing in the Peninsula, it (the authority of the husband) may be supplied by that of his kindred, her natural guardians; but it is otherwise by the law that governs the Bengal Province.....'
'Their Lordships entertain no doubt that the term 'The Peninsula' as used here, and other passages by the same author, denote that part of India which is south of the line drawn from Ganjam to the Gulf of Cambay, and includes the whole of the District.'
The case in '1 Mad 69 (PC)' was itself a case relating to adoption in the family of the Sanokimedi Zamindars who are Oriyas. At least since that case, if not before that, it has been the settled practice of the courts to treat the Oriyas of the ex-Madras areas of Ganjam and Koraput Districts as being governed by the Madras School of law in the matter of adoptions and the Oriyas of that area have themselves invoked that law in such matters. It is now too late to challenge that position, after the lapse of nearly a century of the growth of this consciousness.
Whether the habits and customs of Oriyas in the ex-Madras area have changed in respect of such matters after 1936 and whether the applicability of the Madras School of Law to them is affected by such a change, and if so what degree of bring (sic) about such an alteration in this branch of personal law, are matters which have not been raised at the trial court in these cases and do not arise for consideration before us. There can be no doubt in the absence of proof of any such valid change of law, the Oriyas of Ex-Madras area continue to be governed by the Madras School of law in matters relating to adoptions. There is therefore no doubt that the validity of the adoption in dispute must be judged with reference to the Madras School of law which permits adoption by a widow in the absence of her husband's authority provided that it is done with the consent of the sapindas.
4. Before dealing with the question of the validity of the adoption in this case, it will be useful to notice a few facts relating to the last male-holder's family. The last male-holder was divided from his brothers and other agnates since about 1924. The immovable properties had been partitioned by metes and bounds since 1934 under Ext. F dated 1-3-34. He married two wives of whom the 2nd defendant was married on the death of the first wife. He had an only son by name Gangadhar born to the 1st wife. That Gangadhar predeceased him on 12-8-39, leaving behind him his own widow the 3rd defendant, and three daughters, defendants 4, 5 and 6. Satyananda Podhano, the last male-holder died in 1940. Some time before it, but after the death of his only son Satyananda executed and registered two documents (1) a settlement deed, dated 15-1-40 Ext. I by which he settled some properties on each of the five defendants, defendants2 to 6, and some property on the deity whom he had installed.
It is unnecessary to enumerate the provisions of this settlement deed in detail, except to note that all these five defendants have been given only life interests without powers of alienation and that the property given to the third defendant, the daughter-in-law, is to be enjoyed after her, with absolute rights by son to be adopted by her, and that in case there is no adoption, the property is to go to her three daughters, defendants 4, 5 and 6 and to grandsons through those daughters. The deed also recites that his own wife, his pre-deceased son's widow, and the grand-daughters through his predeceased son were all of them living with him and under his protection.
This settlement deed distinctly contemplates an adoption to be made by the third defendant, the widow of his pre-deceased son. This was followed up by Ext. K, three weeks later on 6-2-40. It is a registered document executed by the last male-holder, Satyananda Podhano in favour of the third defendant. It recites that his only son, who was undivided from him, the husband of the donee under the document, died at the age of 28, about 7 months previously, without leaving any male-issue, and that his widow is under his protection and maintenance. It further States
'I give you hereby my consent to take a son in adoption to your husband according to your choice and you can adopt a boy of your choice to Gangadhar Podhano. In case one adoption becomes in-fructuous, on account of death or otherwise, you can take in adoption one after another.'
5. The attack of the learned counsel for the applicant against the validity of the adoption which is based on Ext. K is as follows: (1) The document is more or less akin to authority to adopt, normally given by a husband to a widow. The father-in-law is only a sapinda whose consent may validate an adoption when made, but he has no power to authorise a further adoption just as a husband could; (2) The document cannot be treated as the consent of a sapinda to a contemplated adoption by the widow, because there has been no application by the widow for the giving of the consent. A consent given unsought and without reference to a contemplated adoption does not satisfy the purpose for which the consent of the sapinda is considered to be sufficient in the absence of the authority of the husband. (3) In any case, the document, Ext. K, cannot have any validity after the death of the executant thereof.
6. It may be mentioned at once, that all these contentions are opposed to the course of decisions of the Madras High Court which cover these specific matters. That the consent of a sapinda is valid and can be acted upon even after his death, provided the circumstances relevant to the adoption have not undergone any material change and the consent has been acted upon within a reasonable time, has been decided by a Pull Bench of the Madras High Court in 'ANNAPURNAMMA v. APPAYYA SASTRI', 52 Mad 620 : AIR 1929 Mad 577. The facts of that case also show that the consent in the form of an authority given by a sapinda without any application by the widow and irrespective of a contemplated adoption has been assumed to be valid. The specific case of the authority given by a father-in-law arose in 'AMMANNA v. SATYA-NARAYANA', 49 Mad 636 : AIR 1926 Mad 916 & it has been expressly held that the authority or consent of the father-in-law to the adoption by a widowed daughter-in-law acted upon after the father-in-law's death was sufficient to validate the adoption,
In matters of adoption, the law relating to which, is almost entirely judge-made, the decisions of theMadras High Court prior to 1936 in so far as they disclose a settled state of the law, must be treated as binding and as governing the parties, while the decisions thereafter though not absolutely binding, may still have to be treated with great respect. If this approach to the present case is adopted, the contentions raised by learned counsel for the appellant must be straightway overruled, but in view of the strenuous arguments urged by learned counsel for the appellant, I shall briefly notice the law on the subject, to indicate that even apart from the authority of those decisions, I would very respectfully follow the same.
7. The foundations of the law relating to adoption by a widow with a consent of her husband's kindred in the Madras School are the dicta of the Privy Council in the leading case in 'COLLECTOR OF MADURA v. MOOTOO RAMALINGA SETHU-PATHI, 12 Moo Ind App 397 (PC), and as subsequently explained in later decisions of the same august tribunal. The law is laid down in that leading case at p. 441 as follows:
'Upon the whole, then, their Lordships are of opinion that there is enough of positive authority to warrant the proposition that, according to the law prevalent in the Dravida Country.....a Hindu Widow, not having her husband's permission, may, if duly authorised by his kindred, adopt a son to him.....The question who arethe kinsmen whose assent will supply the want of positive authority from the deceased husband is the first to suggest itself. Where the husband's family is in the normal condition of a Hindu family -- i.e., undivided -- that question is of comparatively easy solution. In such a case, the widow under the law of all the schools which admit this disputed power of adoption, takes no interest in her husband's share of the joint estate, except a right to maintenance. And though the father of the husband is alive might as the head of the family and the natural guardian of the widow be competent by his sole assent to authorise an adoption by her, yet, if there be no father, the consent of all the brothers who in default of adoption would take the husband's share, would probably be required, since it would be unjust to allow the widow to defeat their interest by introducing a new coparcener' against their will.
Where, however, as in the present case, the widow has taken by inheritance the separate estate of her husband, there is greater difficulty in laying down a rule. The power to adopt when not actually given by the husband, can only be exercised when a foundation for it, is laid in the otherwise neglected observance of religious duty, as understood by Hindus..... Their Lordshipsdo not think there is any ground for saying, that the consent of every kinsman however remote, is essential. The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption.
In such a case, therefore, their Lordships think that the consent of the father-in-law to whom the law points as the natural guardian and 'venerable protector' of the widow, would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every such case must depend upon the circumstances of the family. All that can be said is that there should be such evidence of the assent of kinsmen, as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive.'
These propositions were affirmed by the Judicial Committee in 'RAGHUNADA DEO V. PATTA DEO', 1 Mad. 69. In another case in 'VENKATA KRISHNA RAO v. RAMALAKSHMI', 1 Mad 174, the Judicial Committee explained their decision in '12 Moo Ind App 397 (PC)' as follows:
'All that this Committee in the former case intended to lay down was that there should be such proof of assent on the part of the sapindas as should be sufficient to support the inference that the adoption was made by the widow, not from capricious nor corrupt motives, or in order to defeat the interest of this or that sapinda, but upon a fair consideration by what may be called a family council, of the expediency of substituting an heir by adoption, to the deceased husband.'
In this case, their Lordships deprecated the introduction into consideration of cases of adoption, nice question as to the particular motive operating on the mind of the widow. In a recent case in 'KANAKA RATNAM V. NARASIMHA RAO', AIR 1941 Mad 937 a Pull Bench of Madras High Court decided that the motive of the adopting widow was irrelevant. In a later case in 'KRISHNAYYA v. LAKSHMIPATHI', AIR 1920 PC 4, the Privy Council explained what the reference to 'family council' in the case in '1 Mad 174' meant. It was pointed out therein that, what was necessary was the assent of the nearest 'sapindas' and that the absence of such assent cannot be made good by the authorisation of distant sapindas. The requirement was laid down in the following terms:
'The consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the matter.'
It has been further laid down in that case
'that save in certain exceptional circumstances, the consent of the nearest sapindas must be asked and that when a nearest sapinda refuses his consent out of corrupt or malicious motive, his dissent may be disregarded.'
See also 'VEERABASAVARAJU v. BALASURYA PRASADA RAO', AIR 1918 PC 97. Learned Counsel for the applt. drew our attention to some passages here and there in some of these Privy Council decisions to support the contention, strenuously urged that a consent given by a sapinda for an adoption must be with reference to a particular adoption under contemplation and that it must be more or less contemporaneous with the act of adoption and that it must be given on the application by the widow and not volunteered by the sapinda unsought for. It has been argued that what distinguishes the assent of kinsmen from the authority of the husband are the above features. Some observations of two of the learned Judges of the Madras High Court in the cases in 'LAKSHMI NARASIM-HAM v. RUKMANIAMMA', AIR 1923 Mad 225 and 'BRAHMAYYA v. RATTAYYA', AIR 1925 Mad 67 at p. 74 appear to lend some support to this line of distinction. In the former case, their Lordships said
'We are of the opinion that no sapinda is entitled to give by way of a will, to take effect after his death, a consent to an adoption by a widow. The consent has to be given with reference to the circumstances attendant upon the proposed adoption and usually at the request of the widow.'
In 'AIR 1925 Mad 67', at P. 74, one of the learned Judges stated as follows:
'In my opinion there is an essential difference between the authority of the husband and the assent of a sapinda. The former is intended to be exercised, only after the death of the husband.The latter is intended to be used at a reasonable time, after the consent is given. When the interval is short, the death of the sapinda may not matter; but a sapinda's assent is not to be pocketed by the widow and used long after it was given when entirely different considerations as to the expediency of the adoption may apply. Again the boy to be adopted ought also to be referred to the consideration of the sapinda.'
With great respect, I can find nothing to support this distinction in the various dicta of the leading Privy Council cases referred to above. The Privy Council has referred to the assent of the kinsmen indiscriminately as 'assent' and 'authorisation.' The stress in the cases is on whether the assent relied on affords sufficient proof that the act of adoption by the widow is in the proper and bona fide performance of a religious duty. It is pointed out that the foundation for the exercise of the power of adoption, is to be laid in the otherwise neglected observance of the religious duty and the assent of the kinsmen is required by reason of the presumed incapacity of the woman for independent action.
Though the dicta of the Privy Council in the various cases lay stress sometimes on the temporal aspect of adoption and at others on the spiritual aspect thereof, in the recent case in 'AMARENDRA MAN SINGH v. SANATAN SINGH', AIR 1933 PC 155, which related to the limits of a widow's power to adopt with reference to the considerations based on vesting and divesting of the estate, the foundations of the law of adoption were elaborately reviewed and the importance of the religious basis of the practice of adoption, has been emphasized. It appears to me, therefore, that having regard to these essential features of the practice of adoption and of the doctrine relating to the requirement of the assent of sapindas for adoption by awidow in the absence of the authority of the husband, as being the otherwise neglected religious duty, no importance can be attached to the fact that the consent was given before it was applied for or to the fact that it may not have been given with reference to a particular adoption under contemplation, provided that it satisfies the other crucial tests laid down by the dicta of the Privy Council, viz., that it provides sufficient proof as to the adoption being required in the proper and bonafide performance of the otherwise neglected observance of religious duty and is in law sufficient to supply the presumed incapacity of the widow forindependent action i.e., it proceeds from those kinsmen who may be said to be her natural guardians at the time when the assent is given. The Privy Council and the High Courts have treated the requirement of consent of sapindas as not one of form, but substance with reference to the above criteria.
8. The question has been raised in later cases, whether a consent which would have been valid to authorise an adoption, if made at the time could be utilised for an adoption actually performed subsequent to the death of the giver of the consent. There had been at one time some divergence of opinion on this subject in the Madras Courts, starting from 'SUBRAHMANYAM v. VENKAMMA', 26 Mad 627. In a later case in 'SURYANARAYANA v. RAMADASS', 41 Mad 604, the learned Judges were inclined to doubt the correctness of what was laid down in '26 Mad 627'. In 'BRAHMAYYA v. RATTAYYA', AIR 1925 Mad 67, the learned Judges were inclined to accept the view of '26 Mad 627', but in another case in 'AMMANNA v. SATYANA-RAYANA', AIR 1926 Mad 916, the learned Judges were inclined to accept the view in '41 Mad 604', in preference to that in '28 Mad 627'. This conflict was however resolved by the Madras High Courtin the Full Bench Case in 'ANNAPURNAMMA v. APPAYYA SASTRI', AIR 1929 Mad 577 Which agreed with the view taken in '41 Mad 604', in preference to that in '26 Mad 627'. Their Lordships held that
'the consent of a sapinda given to the adoption can be acted upon within a reasonable time if the circumstances have not undergone material alteration, and irrespective of the question whether the assenting sapinda was dead at the time or whether those, then living approved of it.'
This view, if I may say so with respect, is in complete accord with what appears to me to be the essential features of the doctrine of assent of sapindas to be gathered from the Privy Council decisions noticed above. I may notice in passing that this Full Bench case specifically overrules the view taken in 'AIR 1925 Mad 67', wherein one of the learned Judges made a distinction between authority and consent and thought that the consent of the sapinda could not be acted upon after his death except where the death occurred very shortly after the giving of the consent. The facts of the Full Bench case also show that the consent of the Sapinda given in that case being that of 'the son of the widow was one which could be utilised only after his death and to that extent to have been more in the nature of an authority than of consent strictly.
9. It has been urged that while, the consent of the sapinda may be acted upon even after his death, it cannot be so acted upon when the death brings new persons as the next reversioners. It is said that thereby a material change is brought about in the circumstances which render the previous consent ineffective and incapable of being acted upon. It has been pointed out that the Privy Council itself has laid down in the later cases that all the nearest kinsmen capable of giving independent consent must at least be consulted and that it is their consent that furnishes the validity for the action of the widow in adopting a boy to her husband.
I am, however, unable to agree with this line of argument. It appears to me that when there is at 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 adequate 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. The reversioner's proprietary interest is merely an expectancy and the fact that that expectancy is changed, is not, by itself, a material alteration in the circumstances relevant for the validity of the authority or the consent to adopt. Nor is this view in conflict with the requirement of the rule that all the nearest 'sapindas' have to be consulted. For, that requirement relates not necessarily to the kinsmen as on the date of adoption, but to those kinsmen whose assent as on the date when the assent is given, is sought to be relied upon as the authority for the adoption.
10. I may also add that the case of authority given by the father-in-law to his daughter-in-law who is in fact under the protection of the father-in-law stands on very different and exceptional footing as pointed out by the Privy Council itself in the leading cases. It may be that such an authority does not stand on the same footing as the authority given by the husband to his wife, because, for instance, a husband may either prohibit adoption by his wife, or restrict the adoption to be made within certain circumscribed limits, while a father-in-law may not have the power to prohibit or circumscribe likewise.
But even on the theory of the assent of sapindas, a father-in-law's authority stands on a much higher footing than the consent of any other sapindas and would probably be considered to be available for being acted upon even after considerable lapse of time unless there is such a long lapse of time and such radical change in the relevent circumstances as to make the acting upon by the widow completely out of date. The case in 'AIR 1926 Mad 916 : 49 Mad 636' shows that the authority of the father-in-law is by itself an adequate foundation for the adoption by a widow.
11. On the facts of the present case, there is hardly any scope for a counter argument. As has been explained at the outset, the property of the last male-holder has been settled under Ext. I. Under the terms thereof, even if there is no adoption, the next reversioners have no claim to the property. The terms of both Ext. I, the settlement deed and Ext. K the deed of authority to adopt show very clearly how anxious the last male-holder was that his lineage should be perpetuated by an adoption. Instead of authorising his own widow to adopt he has very properly authorised adoption by his daughter-in-law. It would be unreasonable to think that the law compells him to leave the validity of a future adoption to the caprices of kinsmen other than himself. He has in fact died shortly after giving the authority to adopt under Ext. I. I have, therefore, no doubt in my mind that the adoption of Gangadhar Podhano pleaded by the defendant is absolutely valid in law.
12. In this view of the matter, it is unnecessary to go into the questions as to the validity of the alienations which are challenged. It is regrettable that this litigation has been fought out in the absence of the adopted son himself and without impleading him as a party. It is therefore proper to leave the question of the necessity and the binding character of the alienations open.
13. In the result, the appeals are dismissed with costs; but so far as advocate's fees on these appeals are concerned, there will be only one set of costs payable with reference to the aggregate value of the three appeals.
14. I agree.