Alfred Henry Lionel Leach, C.J.
1. The respondents have not appeared to oppose this appeal but as the Court has decided to allow it the reasons must be stated. The suit out of which the appeal arises was filed by the appellant in the Court of the Subordinate Judge of Rajahmundry for a declaration that the adoption of the first respondent by the second respondent was invalid. The second respondent is the widow of one Jagappa, alias. Jagannatha Sastrulu, who died on the 11th December, 1868. The adoption took place on the 4th July, 1929, nearly 61 years after the death of the husband of the second respondent. The second respondent was a very young girl when her husband died and was still under the guardianship of her father. There were two defences set up. It was said that the appellant and other sapindas had given their consent to the adoption and that the widow was given power to adopt by a will executed by her deceased husband. The Subordinate Judge held that the appellant was the only living sapinda, that he had not given his consent, and that the alleged will was a forgery, but he dismissed the suit on the ground that the appellant had refused his consent from an improper motive.
2. That the consent had been refused was common ground, but the appellant was not asked why he had refused his consent and there is nothing in the evidence which indicates that he refused his consent improperly. The Subordinate Judge assumed that the appellant had refused his consent on the ground that his rights as a reversioner would come to an end if the widow adopted a son to her husband and considered that this would be an improper motive. The Subordinate Judge was not entitled to make this assumption. The burden was on the respondents to prove improper motive see Kristnayya v. Lakshtnipathi (1920) 39 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , - and as the burden had not deen discharged the appellant was entitled to succeed.
3. Under the Mitakshara law as interpreted in this Province the widow cannot adopt a son to her husband unless she has ' received authority from him or has received the consent of her husband's sapindas. That the consent of the sapindas is necessary in the absence of direct authority from the husband is to be gathered from the decisions of the Privy Council in The> Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397, Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi I.L.R.(1876)Mad. 174 : L.R. 4 IndAp 1 , Veerabasavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 Kristnayya v. Lakshmipathi (1920) 39 M.L.J. 70 :I.L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , Sri Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388 , and Balasubramanya Pandya Thalaivar v. Subbayya Thgvar : AIR1939Mad168 . A Full Bench decision of this Court of which my learned brother and I were members had to consider the effect of these authorities in the recent case of Gundavarapu Seshamma v. Kornepati Venkata Narasimha Rao : (1940)1MLJ400 , and it was the|'e held that they had decided that in the absence of authority from her husband the widow could adopt only with the consent of the nearest agnates, unless consent was improperly withheld, in which case she might lawfully adopt with the consent of the next nearest agnates. If there were no agnates she must look for advice to the cognates, it having been definitely laid down by the Privy Council that she was not competent to decide on an adoption for herself.
4. In delivering the judgment of the Judicial Committee in Balasubramanya Pandya Thalaivar v. Subbayya Thevar : AIR1939Mad168 , Sir George Lowndes observed that it would be difficult for their Lordships to hold that under the Madras law there would be any residuary power in the widow to adopt in the absence of sapindas, but as it was not necessary to give a definite pronouncement on the question the discussion stopped there. In my opinion, the effect of the cases which have been decided by the Judicial Comittee on appeals from this Court is that a widow has no power to adopt unless she has express authority from her husband or in the absence of such authority she is acting under the advice of her husband's sapindas.
5. In Patnaloo Appalaswamy v. E. Moosalaya (1933) 12 Rang. 22, a Bench of the Rangoon High Court held that a widow has the same powers to adopt as her husband had in his lifetime when there are no sapindas living, but the learned Judges did not examine the line of cases starting with The Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397. One of the learned Judges, (Das, J.) based this opinion on a passage in the judgment of the Privy Council in Sri Bulusu Gurulingaswami v. Sri Bulusu Ramalakshmamma (1898) 9 M.L.J. 67 : L.R. 26 IndAp 113 : I.L.R. 22 Mad. 398 , where their Lordships said that in Madras.
it is established...that unless there is some express prohibition by the husband, the wife's power, at least with the concurrence of sapindas in cases when that is required, is co-extensive with that of the husband.
6. In that case the Judicial Committee was merely concerned with the question whether a widow could make an adoption of the only son of a kinsman and was not considering the question now under discussion. The other learned Judge (Dunkley, J.) relied on the judgment of the Privy Council in Kristnayya v. Lakshmipathi (1920) 39 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , but I am unable to read it in the same way as he did. The question which the Privy Council was considering there was whether there could be a lawful adoption when the consent of some of the nearest sapindas had not been sought or obtained. Their Lordships held that the absence of consent on the part of the nearest sapindas could not be made good by the authorisation of distant relatives. If the nearest sapindas improperly refuse their consent to an adoption the widow is, however, entitled to seek the consent of the next nearest sapindas. In my judgment the decisions of the Privy Council when fully examined entirely negative the proposition that there is residuary power in a widow to adopt when her husband's sapindas are all dead.
7. If follows that in my opinon the second respondent had no power to adopt the first respondent and that the decision of the Subordinate Judge is erroneous. I would allow the appeal and decree the appellant's suit with costs both here and below.
Krishnaswami Ayyangar J.
8. I agree.