Alfred Henry Lionel Leach, C.J.
1. The question in this appeal is one of Hindu law and there is no authority which has direct bearing upon it. The question is whether the widow of a member of a joint family can adopt a son to her deceased husband with the assent of the nearest divided sapindas when the only surviving coparcener is insane. It is well-settled law in this Presidency that a widow who has not been authorised by her husband to adopt a son to him cannot do so unless she has received the assent of his nearest sapindas, and that she can lawfully adopt with the assent of the remoter reversioners if the nearest reversioners improperly withhold their assent. It has never been decided whether she can go outside the family when there are no joint sapindas capable of advising her, or, if there are they refuse their assent on improper grounds.
2. On the 6th January, 1926, one Sethuramalingam Pillai died leaving two widows and a daughter, the first, second and third defendants respectively. Sethuramalingam Pillai was joint with his brother, Kalitheertha Pillai, the plaintiff. They were the only coparceners. In 1926 Kalitheertha Pillai became insane and remained insane until the year 1931. On the 11th December, 1930, the widows adopted the fourth defendant. The nearest sapindas of Sethuramalingam Pillai outside the family were six in number. Two of them gave their assent to the adoption, but four of them refused their assent on the ground that Kalitheertha Pillai was sane. On the 28th July, 1933, Kalitheertha Pillai instituted a suit in the Court of the Subordinate Judge of Tinnevelly in which he challenged the validity of the adoption and asked for a decree for possession of the family estate. The Subordinate Judge held that the plaintiff was insane when the adoption was made and that the widow was entitled to make the adoption with the assent of two of the sapindas, inasmuch as the other four had improperly withheld their assent. Consequently he declared that the fourth defendant was entitled to a moiety of the properties. On appeal the District Judge of Tinnevelly agreed with the Subordinate Judge. The plaintiff then appealed to this Court and the appeal was heard by Somayya, J., who held that in the case of a joint family a widow is not entitled to seek the advice of divided sapindas and therefore is not in a position to make an adoption. The learned Judge having given the requisite certificate defendants 1 to 4 have preferred this appeal under the provisions of Clause 15 of the Letters Patent.
3. The learned advocate for the appellant has taken the preliminary objection that the assent of two of the six sapindas was not sufficient, but on this question Somayya, J., agreed with the judgments below and I consider that he was right in so doing. Where a sapinda improperly withholds his assent it may be ignored. It is not a question of a majority assenting, but whether those dissenting, if they form the majority have dissented from improper motives. See Subrahmanya v. Venkamma : (1903)13MLJ239 and Venkatakrisnamma v. Annapurnamma (1899) 10 M.L.J. 73 : I.L.R. 23 Mad. 486. The finding of the District Judge that he was insane at the time of the adoption cannot be challenged in this Court and as the four sapindas refused their assent on the basis of the untrue allegation that he was sane their refusal can only be regarded as being improper.
4. In arriving at the conclusion that the widow cannot go outside the joint family when she requires the assent of the sapindas, Somayya. J., relied on the observations of the Privy Council in The Collector of Madura v. Mootoo Ramlinga Sethupathi (1868) 12 M.I.A. 397, Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo , Veerbasavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : 45 I.A. 265 : I.L.R. 41 Mad. 998 (P.C.) and the decision of this Court in Vajjulu v. Gopalakrishnamma : AIR1940Mad950 . It was in The Collector of Maduru V. Mootoo Ramalinga, Sethupathi (1868) 12 M.I.A. 397, that the Privy Council decided that 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. In delivering the judgment of the Board Sir James Colvile said:
The question who are the 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-ie., 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, if alive, might as the bead of the family and the natural guardian of the widow, be competent by his sole absent 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 to required, since it would be unjust to allow the widow to defeat their interest by introducing a new coparcener against their will.
Sir James Colvile then proceeded to discuss the position when the widow has taken by inheritance the separate estate of her husband, which was there the case, and observed:
It is not easy to lay down an inflexible rule for the caste 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.
In subsequent cases the Privy Council indicated that the widow's motive might not be a factor and in Kanakaratnam v. Narasimha, Rao : AIR1941Mad937 , a Full Bench of this Court held that the widow's motive was not material. - The necessity of obtaining the assent of the sapindas however remains.
5. One of the questions discussed in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo , was whether an adoption by a widow was lawful when she had not received the assent of her husband's undivided brother, but had received that of a more remote relative who was separate in estate. The Privy Council held that such consent was not sufficient and their Lordships observed:
There seem to be strong reasons against the conclusion that, for such a purpose as that now under consideration, she can at her will travel out of that undivided family, and obtain the authorisation required from a separated and remote kinsmen of her husband.
This decision is direct authority for the proposition that a widow cannot ignore an undivided sapinda but it does not decide whether she can seek the assent of the divided kinsmen when there is an undivided sapinda alive but so mentally afflicted as to be incapable of advising her.
6. In Veerabasavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 : I.L.R. 41 Mad. 998 (P.C.), the Privy Council again stated that the requisite authority in the case of an undivided family is to be sought by the widow within that family and that she cannot at her will travel outside and obtain the authorisation required from separated and remote kinsmen of her husband. In that case all the undivided sapindas were dead and the widow did not seek the consent of the nearest separated sapindas. The fact that she ignored them was sufficient ground for holding the adoption to be invalid.
7. While recognising that in the cases to which reference has been made the Judicial Committee was not called upon to decide the question now before the Court, Somayya, J., has read, Vajjulu v. Gopalakrishnamma : AIR1940Mad950 , as being directly in point, but we do not share that opinion. The Bench which decided that case was composed of my learned brother Krishnaswami Ayyangar and myself. There the appellant as the nearest Sapinda challenged the adoption made by a widow nearly 61 years after the death of her husband. The widow claimed authority to adopt under a will and also averred that the appellant and other sapindas had given their consent. The Subordinate Judge held that the will was a forgery, that the appellant was the only living sapinda and that he had not given his consent. The Subordinate Judge dismissed the suit, however, on the ground that the appellant had refused his consent from an improper motive. The appellant had not been asked why he had refused his consent and there was nothing in the evidence which indicated that he had refused it 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 he considered that this would be an improper motive. My learned brother and I held that the Subordinate Judge was not entitled to make this assumption, that the burden was on the respondents to prove improper motive and that as the burden had not been discharged the appellant was entitled to succeed. The Court was not considering the question whether the widow could look to divided sapindas for advice when there was an undivided sapinda alive and he had improperly withheld his consent, although it was recognised that in view of the decision of the Judicial Committee in Balasubrahmanya, Pandia Thalavar v. Subbayya Tevar : AIR1939Mad168 , that there was no residuary power in the widow to adopt when there was no sapinda alive.
8. The Hindu law regards the adoption by a widow of a son to her deceased husband as a meritorious act. In Amarendra Mansingh v. Sanatan Singh (1933) 65 M.L.J. 203 : L.R. 60 IndAp 242 : I.L.R. 12 Pat. 642 (P.C.), the Privy Council referred to the well-established doctrine of the religious efficacy of sonship and their Lordships said that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man. As I had occasion to point out in Seshamma v. Venkata Narasimha Rao : (1940)1MLJ400 , the Judicial Committee in Amarendra, Mansingh v. Sanatan Singh (1933) 65 M.L.J. 203 : L.R. 60 IndAp 242 : I.L.R. 12 Pat. 642, recognised the importance of an adoption from a spiritual point of view and indicated that the matter of succession to property is a secondary consideration. It is true in The Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M.I.A. 397, Sir James Colvile considered it would be unjust to allow the widow to defeat the interests of undivided brothers by introducing a new coparcener, but assuming that, in spite of what was said in Amarendra Mansingh v. Sanatan Singh (1933) 65 M.L.J. 203 : L.R. 60 IndAp 242 : I.L.R. 12 Pat. 642, property considerations are paramount in the case of an undivided family-it is not necessary to decide that question here because there was no undivided sapinda capable of assenting-is the widow of a coparcener to be precluded from seeking the advice of divided sapindas when she wishes to adopt a son to her deceased husband and there is no undivided sapinda capable of advising her? I can see no valid reason for a negative answer to this question. The religious significance of the act of adoption is fully recognised by her personal law and it seems to me that the principle which applies in the case of the divided family can with equal justice be applied here. In Bhimabai v. Gurunathgouda Khandappagouda (1932) 64 M.L.J. 34 : L.R. 60 IndAp 25 : I.L.R. 57 Bom. 157, the Privy Council held that in the Bombay Presidency a Hindu widow can make a valid adoption, although her husband died undivided and she has not obtained the consent of his surviving coparceners. The Hindu law as administered in the Bombay Presidency has always given greater latitude to the widow in this respect than the law as administered in the Madras Presidency gives her, and the position in the two provinces is not the same, but the decision of the Judicial Committee in Bhimabal v. Gurunath-gouda Khandappagouda (1932) 64 M.L.J. 34 : L.R. 60. IndAp 25 : I.L.R. 57 Bom. 157, provides another indication that property is not the deciding factor in the situation.
9. I would allow the appeal and restore the decree of the Subordinate Judge with costs here and in the second appeal.
Krishnaswami Ayyangar, J.
10. I agree.