1. This is a suit to obtain a declaration that the adoption of the 2nd defendant by the 1st defendant- the widow of one Ramayya is invalid on the grounds that the 1st defendants had no authority from her husband to make the adoption, and that the alleged assent of the 3rd defendant alone to the adoption is invalid and insufficient in law. The plaintiff and the 3rd defendant are divided brothers, being the nearest existing cousins of the deceased Ramayya, who died issueless about 20 years ago, leaving him surviving no undivided member of his family. The 2nd defendant, who is the son of a remote gnati of the deceased, was, shortly before the institution of this suit, adopted by the 1st defendant, who purported to adopt him in pursuance of her husband's oral authority and of the assent of the 3rd defendant and some other gnatis. The District Judge disbelieved the evidence as to the oral authority given by the husband, but upheld the adoption on the grounds that, according to the proper construction of the document (Exhibit 111) executed by the 3rd defendant signifying his assent to the adoption, his consent was one given independently of the alleged authority of the husband, that such assent was not proved to have been given from corrupt motives, and that the assent of the 3rd defendant alone was sufficient in law inasmuch as 'it would have been useless for the widow to have sought also the assent of the plaintiff who probably wanted one of his own sons to be adopted by her.'
2. Notwithstanding the attempt made before us by the respondent's pleader to impugn the finding of the District Judge as to the alleged authority from the husband, we are quite satisfied that his finding is correct and that the oral evidence in support of the alleged authority is altogether untrustworthy. We also agree with the District Judge that the evidence is by no means sufficient to establish that the 3rd defendant's assent was procured for a pecuniary consideration.
3. The two questions which have been chiefly argued at length before us are (1) whether the 3rd defendant's assent is not null and void as having been given on a representation made by the widow that she had her husband's authority to make the adoption and (2) whether the assent of the 3rd defendant alone is sufficient in law, either absolutely or under the circumstances of the case.
4. The principle of law applicable to the determination of the first question as laid down by the Judicial Committee of the Privy Council in Sri Raghunadha v. Sri Brozo Kishoro and in Karunabidhi Ganesha Ratnamaiyar v. Gopala Ratnamaiyar I.L.R. 71. A 173 and followed by this Court in Venkatalakshmamma v. Narasayya I.L.R. 8 Mad. 545. is that the assent of a sapinda to an adoption to be made by the widow of a deceased kinsman should be one given by him in the exercise of his discretion as to whether the adoption ought or ought not to be made by a widow not having her husband's authority to make the adoption and that, therefore, a sapinda's consent obtained by the widow upon a representation that she had received authority to adopt from her husband, when no such authority has in fact been given, is inefficacious in law. Applying this principle to the present case, the 3rd defendant's assent would undoubtedly be inefficacious if it could be regarded as having been influenced by the widow's allegation of authority from her husband.
5. We are quite unable to concur with the District Judge in construing Exhibit III as the according of an independent assent by the 3rd defendant, whether the husband had given permission or not. On the contrary the document expressly recites that in asking the 3rd defendant to give his assent also, the widow's proposal to him was to make an adoption in pursuance of her husband's authority given to her in the presence of the 3rd defendant and other guatis. The learned pleader for the respondents seeks to distinguish the present case from the cases above referred to, on the ground that if no authority had been given by the husband, as alleged, the 3rd defendant while giving his assent must have known perfectly well that no such authority had been given and the widow's representation, if any. that such authority was given, being one which must have been false to his knowledge could not have influenced the exercise of his discretion in according his assent. Assuming that the alleged authority of the husband was false to the 3rd defendant's knowledge, the soundness of this contention must be accepted and the case would thus be clearly distinguishable. In the present case, no doubt, the 3rd defendant has given direct evidence in support of the alleged oral authority of the husband and he also stated in Exhibit III that the husband's authority was given in his presence. Though we concur with the District Judge in distrusting his evidence .it does not. however, necessarily follow from this circumstance that the3rd defendant himself really disbelieved the widow's representation if any, that she had her husband's authority to adopt. It may be that, believing the representation to be true, he supported the widow by falsely stating and giving evidence that he himself was present when the alleged authority was given. But upon the whole evidence in this case, we are satisfied that he knew as well as the first defendant did, that the husband had given no authority what ever, but that the two acting in collusion against the plaintiff, invented the husband's authority-which the 3rd defendant was to support by his evidence-with a view to neutralizing the absence of the assent of his brother (the plaintiff) and thus avoid the risk-by no means an improbable one-of the adoption being upset on the ground that the 3rd defendant's assent alone was insufficient. We cannot, therefore, hold that the 3rd defendant's assent if otherwise sufficient is invalidated by the widow having falsely set up her husband's authority.
6. In approaching the consideration of the 2nd contention relied on in support of the appeal, we have to be guided chiefly by the decisions of this Court in Parasara Bhattar v. Ranga Raja Bhattar I.L.R. 2 M. 202 and Venkatakrishnamma v. Annapurnammah I.L.R. 23 M. 486. We may at the outset dispose of the assent alleged to have been obtained by the widow from a number of her husband's distant gnatis, with the remark that such of them as have been examined as witnesses in (lie case deny having given any such assent, and that even assuming it to have been given such assent can be of no avail as the 1st defendant herself in her evidence states that she obtained their oral assent to the adoption by representing to each of them that she had her husband's authority.
7. In Parasara Bhatiar v. Ranga Raja Bhattar I.L.R.2 M 202 as in the present case the adoption was made with the assent of only one of two sapindas of equal degree, who were divided between themselves and both divided from the deceased. In upholding the adoption on the ground that the non assenting sapinda withheld his assent on improper grounds this Court laid down the law applicable to the case as follows.-and where the only surviving members of the family are divided from the deceased husband for whose benefit it is desired to make the adoption, and also from each other and equally distant from the deceased, there seems nothing in principle to throw doub upon the sufficiency of the assent of some of them, when bona fide given, if it be shown that the consent of the others is refused from interested or improper motives or without a fair exercise of discretion In the present case the assent of both sapindas was sought and plaintiff's assent to a second adoption was not absolutely withheld, but it was coupled with a condition that the widow should adopt his 3rd son In suit No. 156 of 1859, he had stated that this boy was already given in adoption in another family. That assertion is found now to have been false (See Appeal, No. 51 of 1879), but the widow upon the ground stated, refused to make an adoption which might turn out to be invalid, it is clear that plaintiff's assent was subsequently withheld from purely interested motives, and the evidence shows .that the assent of the 7th witness for plaintiff-who belongs to a branch of the family senior to that of plaintiff and who is at least equally entitled with the plaintiff to succeed to the reversion-was given with complete good faith and in the exercise of a deliberate discretion I.L.R. 2 M. 206
8. It will be observed that in the above case the non-assenting sapinda was applied to, by the widow, for his assent, but that he refused to give his assent unless she would adopt his own son, whom, according, to his sworn deposition previously given in a Court of Justice, he had already given in adoption to a third party and that the widow refused to make an adoption which might turn out to be invalid. In the present case, it. is clear from the evidence of the 1st defendant herself that she never applied to the plaintiff for his consent. She says that she expressed a desire about 5 years ago to adopt the 2nd defendant and that the plaintiff then said he would give his own boy in adoption, who being then 10 or 14 years old, was in her opinion too old to be adopted. Though according to her own statement, she went to the houses of all the gnatis, shortly before the adoption, she did not go to the plaintiff's house to obtain his assent. The plaintiff and some of the gnatis, on hearing that the 1st defendant was going to adopt the 2nd defendant, sent to her, about 10 days before the ' '1 ...adoption, the following letter, by registered post-which, however, being refused by her, was returned to the plaintiff by the Post office: 'It is learnt from rumours you give rise to, that having fallen into evil ways and contrary to law and without authority or sanction from your husband or the nearest gnatis, and on the evil advice of Venkatappayya, you are going to adopt his son. Any adoption made in the said manner is not at all valid. Even if you should do so, our right of heir ship cannot be lost. It is clear that you have no good intention in making this adoption but only the evil intention of allowing the property to go into other's possession ; such adoption will be caused to be set aside by a Court. So understand.' The plaintiff in his evidence says that he never asked the 1st defendant to adopt his son and that she never asked him for his assent for her making an adoption.
9. The learned pleader for the respondent urges 1st, that the assent of the 3rd defendant alone is sufficient in law, especially as he is the plaintiff's senior in age, and 2ndly, that even assuming that under ordinary circumstances the widow should have also sought for the plaintiff's assent, she need not have done so in the present case, as it was certain that he was hostile to her adopting the 2nd defendant and would, therefore, have refused his assent, even if applied to. Having regard to the deliberate dicta of the Privy Council in the Ramnad 12 M.I.A. 397 Chinnakimidi I.L.R. 3 IndAp 154 and Guntur L.R. 4 IndAp 1 cases-in the first two of which the judicial committee disapproved of the proposition of Mr. Justice Holloway that the assent of any single sapinda would be sufficient-and the decisions of this Court in Arundadi Ammal v. Kuppamal 3 M.H.C.R. 283 Parasara Bhattar v. Ranga Raja I.L.R. 2 M. 292. Bhattar and Venkatakrishnamma v. Annapurnamma I.L.R. 23 M. 486, it is too late in the day to contend that the assent of the 3rd defendant alone, ignoring the plaintiff, would be sufficient. As regards the 3rd defendant's seniority that is quite immaterial. In an undivided family, no doubt, the senior in age having the status Of managing member of the family, it may be that his assent alone, if given bona fide, will be sufficient and be equivalent to the assent of the family. But this consideration does not apply to cases where the assent has to be sought from divided kinsmen-especially when they are also divided as between themselves. Adverting to cases ill which the deceased husband died a separated member and there is no father-in-law alive, the Judicial Committee in the Guntur case I.L.R. 1 M. 174 explained their dictum in the Ramnad case as follows:
All which 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 or 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.' The expression 'family council' in the above extract is no doubt rather too general and comprehensive, It is not probable that it was intended to include the whole circle of sapindas and samanodakas or to imply that they should assemble. The presumptive reversionary heir or heirs are the nearest of kin to the deceased husband and as such the natural advisers of the widow ; and if his or their assent be obtained and the same be given bona fide and not from any corrupt motive, that would be sufficient authority on which she could act, and it would not be necessary that she should seek the assent of remoter reversionary heirs. The two cases Parasara Bhattar v. Ranga Raja Bhattar I.L.R. 2 M. 202 and Venkatakrishnamma v. Annapurnamma I.L.R. 23 M. 486 evidently proceed on this view, though it does not appear from the report whether or not there were remoter reversionary heirs in existence. If the presumptive reversionary heir or heirs withhold his or their assent from improper motives, the widow may validly act upon the assent given bona fide, by remoter reversionary heirs. Adverting to cases in which a majority give or withhold assent and a minority withhold or give assent, Justice Subramania Aiyar in his judgment (concurred in by Moore, J.) in Venkatakrishnamma v. Annapurnamma I.L.R. 2 M. 202 observed as follows: (at p. 488). 'It should, at the same time, be born in mind that a mere numerical majority, whether in favour of or against an adoption, will not by itself determine the question. Adoption being a proper act, it will be presumed that when the majority give their assent, such assent was given on bona fide grounds. If, however, it be shown that the majority give or with hold their assent from improper considerations, such assent or dissent will be of no avail to the party relying on it.' In the above case, there were four reversionary heirs of equal degree, three of whom gave assent, but the fourth withheld his assent, without communicating to the widow either at the time he was asked to assent or subsequently, what the reasons for his refusal were and the adoption was upheld on the ground that the sapinda who refused '' to give his reasons for the opinion why an heir by adoption should not be substituted, while other sapindas decide in favour of such substitution, cannot be held to exercise properly the discretion confided to him. His opinion against the adoption must be put entirely out of consideration as capricious or prompted by undue consideration.
10. In both the above cases, the widow had sought the advice and assent of all the presumptive reversionary heirs and the adoption was upheld, though one of the two in the first cast withheld his assent-but on an improper ground-and one of the four, in the latter case, withheld his assent-but without giving any advice or reason. In the present case, it is argued that though the plaintiff's assent was not sought for, at or about the time of the adoption, yet inasmuch as he would have refused to give his assent, it must be taken that his assent was applied for and refused. It is, however, impossible to accede to this argument. If it was her duty to seek the assent, not only of the 3rd defendant, but also of his brother (the plaintiff) she cannot be regarded as having discharged her duty because, in her opinion, she would have made an application to the plaintiff but in vain. The very object of enjoying a widow to seek and act under the advice of her husband's sapindas will be defeated if she does not give an opportunity to the sapindas concerned to advise her against making an adoption or against adopting a particular boy. It may be that if the sapinda who is supposed to be opposed to the adoption be consulted, his advice against the adoption will be effective upon the widow or it may be that the widow's explanation will induce him to change his mind and give his assent. Whether the deponent was conscious of it or not, we think there is much truth and force in the following statement of the plaintiff in his deposition: 'I was not asked to give consent to the adoption. I cannot say what I would have done if 1 had been asked.' In answer to questions put to the plaintiff as to the allusion made in his notice-(Exhibit I already referred to)-to the 1st defendant having fallen into evil ways, he stated as follows: 'The minor's (2nd defendant's) natural father, was familiar with the 1st defendant and so I wrote as I did in the letter. I suspected her conduct.' It would have been perfectly legitimate on the part of the plaintiff to dissuade the widow from adopting the 2nd defendant if he had reason to believe that such adoption would lead to scandal and bring disrepute on the family. If she had applied to him for his assent and he withheld the same, with or without assigning reasons, and she had nevertheless made the adoption relying on the assent of the 3rd defendant alone, we should then be in a position to decide whether the plaintiff withheld his assent properly or improperly and capriciously. But it is clear from the action of the 1st defendant in refusing to receive the letter which was sent to her by registered post that she was determined to ignore him and not care for his advice or even give him an opportunity to advise her. The plaintiff says in his evidence that he never asked the 1st defendant to adopt one of his sons. But, assuming as the 1st defendant says, that some 5 years before the adoption the plaintiff wanted her to take one of his sons in adoption, there is nothing improper in a sapinda proposing I to give his assent to the widow adopting his own son if such son be the nearest sapinda, and refusing to give his assent to her adopting a stranger or a distant sapinda, if there be no reasonable objection to the adoption of his own son-as for instance in the case of Farasara Bhattar v. Ranga Raja Bhattar I.L.R. 2 M. 202.
11. For the above reasons the adoption of the 2nd defendant made by the 1st defendant with the assent of the 3rd defendant alone is invalid. The appeal is therefore allowed and in reversal of the decree of the Lower Court, judgment is given for the plaintiff with costs throughout, declaring the adoption of the 2nd defendant by the 1st defendant to be invalid.