Satyanarayana Rao, J.
1. The only question that arises for consideration in this appeal is whether the adoption of defendant 2 by defendant 1 in valid The adoption was upheld by the Subordinate Judge and his decision was confirmed by Rajamannar J. (as he then was). The question received, if I may say so with respect, an exhaustive and careful consideration by the learned Judge in the judgment now under appeal; as I am agreeing with his decision, it is unnecessary to consider the question elaborately in this judgment. As the question raised, however, is of considerable importance and is not covered by any decision, I should like to state, in my own words, the reasons for my conclusion.
2. Defendant 1's husband, the late Hari Govindorao, died on 14th November 1937. The plaintiff is his undivided brother. Both of them are the sons of one Veerabadra Raju, who was the son by the first wife of one Govinda Raju. Govinda Raju married a second wife, Bangaramma. It has been found that Govinda Raju separated from his son Veerabadra Raju; and, therefore, the plaintiff and Hari Govinda Rao alone constituted members of an undivided family. Soon after the death of her husband defendant 1 applied to the plaintiff for consent to the adoption and there was an exchange of registered notices in that connection between them. They are Exs. P-2, dated 10th December 1937, D-4 (a) dated 19th December 1937, P-2 (a) dated 10th January 1938, D-5 (a) dated 18th January 1988, P-2 (b) dated 7th February 1938 and D 6 (a) dated 14th February 1938. As the plaintiff refused to give his assent to the adoption, defendant 1 approached Govinda Raju, the paternal grandfather of her husband, and the his consent evidenced by Ex. D-8 dated 7th May 1988, she adopted defendant 2 on 11th May 1938. The factum of adoption though disputed by the plaintiff in the Courts below has now been accepted as true by the plaintiff.
3. He instituted the suit out of which this appeal arises on 6th August 1938 for a declaration that the alleged adoption of defendant 2 by defendant 1 is not true and valid in law. He succeeded in the trial Court, but that decision was reversed by the Subordinate Judge on appeal and was confirmed in second appeal by this Court. This Letters Patent Appeal is against She decision in the second appeal.
4. The validity of the adoption was questioned in this appeal on two grounds; first, that the widow without the consent of the undivided coparcener, the plaintiff, could not make a valid adoption even if he had improperly refused to give his assent to the adoption; and that, in any event even if the refusal was improper, she was not entitled to travel outside the undivided family and seek the assent of a divided sapinda to justify the adoption, Secondly, that the refusal by the plaintiff was proper and was justified. On the first of these questions there is no decision which has considered the question and answered it one way or the other; and the question was expressly left open in Cheilathammal v. Kalitheertha Pillai, I L. R. (1943) Mad. 107 : A. I R. 1942 Mad. 606.
5. The rules relating to the adoption by a widow with the assent of the sapindas are developed by judicial decisions and are not based upon any texts of Hindu law, except the principle founded on texts that a woman is always under a perpetual tutelage to some one or other of her relations. The rule itself was formulated for the first time by Sir James Colvile in three decisions familiarly known as the Ramnad case, Collector of Modura v. Muthuramalinga Sathuputhi, 12 M. I. A. 397 : 1 Beng. L. R. 1; Virada, Pratapa Raghunada Deo v. Sri Brozo Kishore Dattadeo (first Berhampore case), 1 Mad. 69 : 3 I. A. 154 and the Guntur case, Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmini, 1 Mad. 174 : 4 I. A. 1. The statement of the law by His Lordship in these three cases has been extracted in almost all the decisions dealing with the point and also in the judgment now under appeal and have become classic. No useful purpose will, therefore, be served by extracting those passages and in burdening this judgment with them.
6. In Southern India the. position that in the absence of an authority from the husband, a widow can make a valid adoption with the assent of her husband's sapindas has now been settled. In the Ramnad case, 12 M. I. A. 397 : 1 Beng, L. R. 1, the question as to who are the sapindas, whose assent will be a substitute for want of a positive authority from the deceased husband was considered from a twofold aspect; the first, where the husband was a member of an undivided family at the time of his death, and the second, where the husband was divided member. It was there stated that in the case of a divided family there should be such assent of the kinsman as would suffice to show that the act of adoption was done by the widow in the proper and bona fide performance of a religious duty and not from any capricious or corrupt motive. By that it was not meant that the assent of every kinsman, however remote, was essential. If the father-in-law of the widow were alive, he being the natural guardian and venerable protector of the widow, his assent alone would suffice. If there is none, however, the assent of the kinsman is needed by reason of the presumed incapacity of the woman for independence, rather than the obtaining of the consent of all those whose interest in the estate would be defeated by the adoption. In the subsequent Guntur case, 1 Mad. 174 : 4 I. A. 1, this rule was further amplified and made clear that proof of assent on the part of the sapindas was required to establish the inference that the adoption was made by the widow without any capricious or corrupt motive, with a view to defeat the interests of this or that sapinda. The sapindas who constitute a family council, according to that decisions, have to decide upon a fair consideration of all the circumstances the expediency of substituting an heir, by adoption, to the deceased husband. When these pronouncements were made, however, they were not intended to lay down an exhaustive statement of the law applicable to each and every situation. The first difficulty that occasioned a modification of the rigour of the rule was the situation where some of the sapindas whose consent was asked for refused on the interested and improper motives to give their assent to the adoption. If the rule as stated in the above decisions were to be strictly applied if any one of the group of sapindas nearest in degree who constituted a family council refused to give the assent to the adoption on improper grounds, the adoption by the widow became impossible. This Court in Parasara Bhatta v. Ranyaraja Bhatta, 2 Mad. 202, observed that all that the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. E. 1, decided was that the adoption was valid when the assent of the majority of the sapindas was accorded but that it never decided that an adoption was absolutely invalid by reason of the consent of less than the entire body of sapindas having been obtained. It was enough, it was stated therein, that if all the sapindas nearer in degree were consulted and their assent sought; but if the sapinda refused on improper grounds to give his assent, his dissent may be ignored. This principle was further developed and was elaborated by Subramania Iyer J. in the decision in Venkatakrishnamma v. Annapurnamma, 23 Mad. 486 : 10 M. L. J. 73) and by Bhashyam Ayyangar J. in Subrahmanyam v. Venkamma, 26 Mad. 627 : 13 M.L.J. 239 which was confirmed by the Privy Council in Venkamma v. Subramaniam, 30 Mad. 50 : 34 I. A. 22 which is the next land mark in the development of the law. In Venkamma v. Subramaniam, 30 Mad. 50 : 34 I. A. 22, the Judicial Committee laid down the imperative duty on the part of the widow of consulting the nearest sapinda and obtaining his mind on the family question and obtaining his judgment on the expediency of the proposed adoption. The same principle was again examined by the Privy Council more elaborately in Veerabasavaraju v. Balasurya Prasada Rao, 41 Mad. 998 : A. I. R. 1918 P. C. 97. There were further difficulties which had to be got over and the rule requiring that the sapinda should be consulted in the matter of the adoption with all its implications received fuller consideration by the Judicial Committee in Krishnayya v. Lakshmipathi, 43 Mad 650 : A. I. R. 1920 P. C. 4 (Adusumilli's case). This branch of the law has been amplified and authoritatively settled by this last decision of the Judicial Committee which considerably modified the rigour of the rule as stated by Sir James W. Colvile in the three judgments referred to above. Viscount Cave who delivered the judgment in Adusumilli's case, 43 Mad. 650 : A. I. R. 1920 P. C. 4, explained the meaning of the expression 'family council' which was for the first time used in the Guntur case, 1 Mad. 174 ; 4 I. A. 1 and stated its implications At p. 654 the law on this branch was thus summarised :
'The reference in the last mentioned case to 'family council' gave rise to some doubt whether, where there were agnatic relations closely related to the deceased, the assent of those standing in a remoter degree was either necessary or sufficient; but this doubt was resolved in the recent case in Veerabasava v. Balasurya Prasadarao, 41 Mad. 998 : A.I.R. 1918 P. C. 97 where it was held that the absence of consent on the part of the nearest sapindas cannot be made good by the authorisation of distant relatives whose assent is more likely to be influenced by improper motives. This does not mean that the consent of the near sapinda who is incapable of forming a judgment on the matter, such as a minor or lunatic, is either sufficient or necessary, nor does it exclude the view that where the near relative is clearly proved to be actuated by corrupt or malicious motives, his dissent may be disregarded.'
Nor does it contemplate cases where the nearest sapinda happens to be in distant country and it is impossible without great difficulty to obtain his assent, or where he is a convict or Buffering a term of imprisonment. 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 in the matter. It must, however, be added that, save in exceptional cases such as those mentioned above, the consent of the nearest sapindas must be asked, and if it is not asked, it is no excuse to say that they would certainly have refused; Venkamma v. Subramaniam, 30 Mad. 50 : 34 I. A. 22. When this statement of the law is considered with reference to the rule applicable to the case where the husband of the widow died a divided member as in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. I, it is evident that the rigour of the rule as stated in that case has been considerably modified. It is not, therefore, now necessary to obtain the consent of all the nearest sapindas it is enough if they are all consulted. If, however, it is not possible to consult all of them and to ask for their consent by reason of the fact either that a sapinda had not the requisite mental capacity or was not available owing to absence in distant country or for other reasons, he may be ignored. There must, however, be a consent of a substantial majority of the agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the questions of the proposed adoption. The duty of the widow to ask for the consent of the nearest sapindas as far as possible is imperative.
7. There was considerable divergence of opinion in the Indian Courts particularly by reason of the judgment of Lord Kingsdown in Mt. Bhoobun Moyee Debia v. Ram Kishore, 10 M. I. A. 279 : 3 W. R 15 P. C., regarding the test to be applied to determine when and under what circumstances the power of the widow to make an adoption continues or is extinguished. At one time it was thought that the decision in Bhoobun Moyee's case, 10 M. I. A. 279 : 3 W. R. 15 P. C. and the other decisions which have considered it have drawn the limit of the power at the point when the property vested on the death of the last holder in a person other than the adoptive widow or in another coparcrner of the joint family or an outsider claiming by reverter or by inheritance. While examining the correctness of this view, Sir George Lowndes in an exhaustive judgment had to examine the essential features of the doctrine of adoption among Hindus in Amarendra Mansingh v. Sanatan Singh . It was there stated that the adoption under Hindu law had peculiar religious significance as it was essential, according to the notions of every Hindu, that hr should have a son to deliver him after death from puth or hell. For this purpose, the son according to the Hindu law, by reason of his birth became subject to three debts. The foundation of the doctrine of adoption, therefore, is based on the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnisation of the necessary religious ceremonies. It was, therefore, held in that case, that the institution of adoption was not secular but religious and that the consideration of property rights and the effect of adoption on such rights was of subordinate or of secondary importance. For this reason, it was laid down in the Amarendra's case, 12 Pat. 642 : A. I. R. 1983 P. c. 155 that the limit of the widow's power to adopt is reached when the natural son of the widow proposing: to make an adoption dies after attaining full legal capacity to continue the line either by birth of a natural born son or by an adoption to him of a son by his own widow.
8. After these decisions, the Privy Council had again to examine the true foundation of the adoption in Hindu law in considering the question whether the consent of a daughter's son was necessary and whether he was entitled to be consulted in the matter of adoption by his grandmother as the daughter's son takes a peculiar position in the line of succession among the agnates by virtue of the commentary of Mitakshara on the text of Yajnavalkya enumerating the order of succession to a sonless person. It was contended in Ranasubbayya v. Chenchuramayya, I. L. R. (1948) Mad. 362 : A.I.R. 1947 P. C. 134, that as the rights over property of the daughter's son would be seriously affected by the adoption he was entitled to insist that his opinion also should be obtained in the matter of the expediency, or introducing, by adoption, a son to the deceased. Some of the expressions used by the Privy Council in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 P. C. and in the subsequent cases, such as 'kinsman' 'kindred' and 'sapinda' gave rise to some doubt whether these expressions included 'agnates' and 'cognates' as well or were confined only to sagotra sapindas or male agnates. Sir Madhavan Nair, who delivered the judgment in that case again considered the question whether the adoption is a temporal or a spiritual institution. In view of the conclusions of Sir George Lowndea who delivered the judgment in the Amarendra's case , it was held that the substitution of a son of the deceased is the essence of adoption and that the consequent devolution of the property was of a subordinate importance, and was a mere accessory to it. The decision in Amarendra's case and the decision in Ramasubbayya's case, practically accept the view of Halloway J. in the first Berhampore case, 1 Mad. 69 : 3 I. A. 154 P. C. that
'the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property is a mere accessory to it.'
It was, therefore, held that as the daughter's son was a cognate and not an agnate and considerations of proprietary interest were of subordinate importance, the daughter's son had no place in the family council. The decision in Seshamma v. Narasimharao, I.L.R. (1940) Mad. 154: A.I.R. 1940 Mad. 356 was approved.
9. These two decisions establish finally and conclusively that in matters of adoption devolution of property is of secondary importance and that the validity of the adoption is to be judged and determined by spiritual rather than by temporal considerations.
10. This discussion of the principles relating to adoption in divided families is intended to establish that serious inroads were made by the later decisions into the stricter doctrine of the earlier decisions in the Ramnad case, 12 M.I.A. 397: 1 Beng. L. R. 1 P. C. and other cases.
11. How does the matter then stand in cases where the deceased husband was an undivided member of the family If the rule in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 P.C. and the first Berhampore case, l Mad. 69 : 3 I. A. 154 P. C. were to be strictly enforced in the manner contended on behalf of the appellant, if the coparcener or coparceners living, refuse even for no valid reason to give their assent to the adoption or even if they are incapacitated by reason of minority, lunacy or otherwise, it would be impossible for the widow to provide for the perpetuation of the line of her husband and for ministering to his spiritual needs. It cannot be and it is unthinkable that a distinction in matters spiritual exists whether the deceased was at the time of his death a divided or an undivided member of the family. The spiritual needs of both stand on the same footing and according to orthodox Hindu notions the souls of both have to be saved in the same manner and to the same extent if possible from hell. The duty of providing a means for the performance of the ceremonies continuously for the salvation of the soul of the deceased is cast on the widow who alone, according to the decisions, is capable of continuing the line. If the undivided coparceners purely from secular motives withhold their consent and interdict an adoption by the widow, there is no means of saving the soul of the deceased and conferring upon him spiritual benefit. This cannot certainly be the intention of the rule as stated in the earlier decisions when examined in the light of the later decisions. The passages in the two decisions, the Ramnad case 12 M I. A. 397: 1 Beng L. R. 1 P. c. and the first Berhampore case: 1 Mad. 69: 3 I. A. 154 P. C. extracted in the judgment now under appeal, in my opinion, do not prohibit the widow from travelling outside the family under all circumstances and in all eventualities. Ordinarily, the nearest sapindas will be the undivided coparceners They being vitally interested in the joint family are certainly persons entitled to be consulted in the first instance in the matter of the proposed adoption and in introducing a new coparcener into the family. This statement of the law cannot mean, in my view, more than that. In the Ramnad case, 12 M.I.A. 397: 1 Beng. L.R. 1 P.c., in stating the rule where there is no father who is the head of the joint family, the Privy Council were careful enough to use words to indicate that they were not finally and conclusively determining that the consent of all the brothers who, in default of adoption, take the husband's share, was needed under all circumstances. The use of the expression 'would probably be required' is significant as indicating that it is not their final decision that under all circumstances, without exception the consent of all the brothers should be obtained. In the Berhampore case, 1 Mad. 69: 3 I.A. 154 P. c., it was said that the widow was not entitled at her will to travel out of the undivided family, which clearly indicates, in my opinion, that she is not entitled, according to her choice, to ignore the coparceners altogether even in the first instance and go outside the family to make an adoption with the consent of the divided members. It was only intended in my opinion to emphasise the duty of the widow to seek the assistance, in the first instance, in the family where she must necessarily find such counsellers and protectors as the law makes requisite for her. The decision in Chellathammal v. Kalitheertha Pillai, I. L. R. (1943) Mad 107: A.I.R. 1942 Mad. 606 creates an exception in the case where the only coparcener happened to be a lunatic. In such a case it was held reversing the decision of Somayya J. in Kalitheertha Pillai v. Chellathammal : (1942)1MLJ28 that the widow was entitled to make a valid adoption with the consent of the divided members. I do not see, in principle, any distinction between a case where a coparcener was incapable of giving his assent and therefore there was no necessity to consult him and a case where the coparcener improperly refused and withheld his assent for the valid act of adoption. The principles laid down by Viscount Cave in Krishnayya v. Lakshmipathi (Adusumilli's case), 43 Mad. 650 : A. I. R. 1920 P.c. 4, in my opinion, apply equally to the case of an undivided family.
12. Patanjali Sastri and Bell JJ. in an un-reported decision in App. Nos. 96 and 256 of 1944 which was referred to in another connection by Rajamannar J. considered the matter and Patanjali Sastti J. who delivered the judgment of the Bench indicated that the rule in the Ramnad case, 12 M.I.A. 397: 1 Beng, L.R. 1 P.C., is not an inflexible one. In that case the widow made the adoption with the consent of a coparcener of her deceased husband, a divided member. Two other coparceners who were asked for permission refused to give the assent on proper grounds. The question raised was whether the widow was entitled to go outside the family to justify the adoption and obtain the assent of an outsider. It was held that as in that case the refusal was proper, the adoption was invalid and in answer to the contention that the widow was not entitled to go outside the family it was held that as she obtained the consent of at least one of the coparceners in the family it satisfied the rule; and that it was unnecessary to decide the larger question. But the point of interest is that if the refusal of the other two coparceners was improper, the judgment of the learned Judge implies that as she consulted and obtained the assent of one coparcener, even though there is no consent of the other two the adoption would have been valid. In other words the consent of all the coparceners is not essential in such a case.
13. The passage from Mayne's Hindu Law, Edn. 10, p. 219, no doubt supports the argument advanced on behalf of the appellant, but for the reasons already stated, I am unable to agree with the opinion of the learned author. His view is based entirely upon the decision in the Ramnad case, 12 M. I. A. 397: 1 Beng. L. R. 1 and the Berhampore case, 1 Mad 69 : 3 I.A. 154 and in the light of what has been stated above, it is difficult to accept that view. The learned counsel for the appellant also referred to the Travancore case, 8 Mad. Jurist 58, in which it was held that the assent of certain separate dayadhis of the deceased husband was not sufficient to validate the adoption by a widow without the assent of the husband's undivided brother who was also the head of the family. This decision was approved by the Privy Council in the first Berhampore case, 1 Mad. 69: 3 I.A. 154. On an examination of the facts of the case, it is not clear whether the widow did or did not ask the undivided member of his assent before the adoption and if he was asked reasons, if any, on which his refusal was based to decide whether his refusal was proper or not. That case, therefore, in my opinion, cannot be an authority in support of the contention of the appellant. For these reasons I am of opinion that the assent of Govinda Raju in the circumstances is valid and is also sufficient.
13a The only other question that remains to be considered is whether the refusal of the plaintiff to consent to the adoption was justified. The reasons on which the refusal was based and on which it was sought to be justified before us are that the boy adopted belongs to a family in which there was leprosy and that he in fact had patches on his body and that he came from enemy's camp, i.e., the group of Bangaramma, the second wife of Govinda Raju. The third ground was that he was prepared to give his son in adoption and that the widow unjustly refused to adopt him and therefore he was justified in withholding his assent. It has been found by the Subordinate Judge and by the learned Judge who heard the second appeal that the plaintiff failed to substantiate his plea that the boy came from a family of lepers. The learned Subordinate Judge characterised the imputation by the plaintiff that the boy had patches of leprosy as reckless and wilful untruth. This ground therefore was rejected also in second appeal as not having been established and we agree with the conclusions of the learned Judge. It was argued that one Sitharamudu, the paternal aunt of the natural father of the boy has leprosy as established by the doctor's evidence, D. W. 12, and that the residence of the boy in the house in which that woman also continues to live was dangerous. There is no evidence to show that this Sitharamudu was living in the family at or about the time of the adoption. This ground, however, is a frivolous one and has not been substantiated. The ground that the boy adopted belonged to the enemy camp is not a proper ground for refusal as held by the Judicial Committee in Krishnayya Rao v. Venkata Kumara Mahipathi Suryarao Bahadur . The relationship of; the natural father and also the father of defendant 1 to Bangaramma and that group was emphasised as showing enmity. There is evidence to show that the widow liked the boy and that Govinda Raju executed a deed of settlement in favour of the plaintiff and his deceased brother. I agree with the conclusion of the learned Judge that 'it is difficult to understand how the fact that they were inimically disposed to his deceased brothers could have an important bearing.' This ground, therefore, both on the facts and on the law is untenable.
14. Lastly, there remains the question of the alleged offer by the plaintiff in the registered notice to give his son in adoption. The plaintiff had only one son at the time of the adoption and his wife was enciente at the time. A perusal of the letters show as pointed out by the learned Judge that 'the reference to his own boy is more to persuade the widow not to adopt rather than by way of a bona fide offer of his only son.' Certain observations of Bhashyam Aiyangar J. in Subramania v. Venkamma, 26 Mad. 627 : 13 M. L. J. 239 were relied on to show that the refusal coupled with an offer to give his own son in adoption by a nearer sapinda was proper refusal. The widow in the present case pointed out in her reply that it would be improper to aopt an only son. No doubt under law there is no prohibition for the adoption of an only son of the natural father; but this is opposed to Hindu notions. The widow, therefore, was entitled to reject the offer. Further, in my opinion, the observations of Bhashyam Ayyangar J. in the above decision are obiter. According to the decisions of the Privy Council already referred to, the sapinda whose consent was asked for has to consider the expediency of the proposal adopted and pronounce an independent and unbiassed judgment on that question. It would be open to the widow if she chooses, to consider the offer made by the sapinda but the sapinda cannot justify his refusal on the ground that his son was not accepted in adoption. It would not be an independent judgment of his to say that because his son was not adopted the adoption was improper. In Subramaniam v. Venkamma, 26 Mad. 627 : 13 M. L. J. 239, the observations were obiter as in that case the sapinda was not asked to give his assent for the adoption and he stated that he could not say what he would have done if he was asked to give his assent for the adoption. The decision of Patanjali Sastri and Bell JJ. in A. S. Nos. 96 and 286 of 1944 was relied on in justification of the refusal by the plaintiff on this ground. In that case the facts were somewhat peculiar. The two undivided brothers of the deceased husband of the widow when they received notice from the widow asking for their consent, requested the widow to meet them with a view to enable them to discuss the question of the proposed adoption. In pursuance of this request the widow met her brothers-in-law at Narasapur where the matter was discussed in the house of a vakil. At that meeting the brothers-in-law suggested that each of them had sons and that they were prepared to give any one of their sons in adoption. This offer was not acceptable to the widow. The coparceners also subsequently intimated their desire to give their own son in adoption in order to save the situation of bringing into the co-parcenery an utter stranger. Even then the widow did not consider the matter but made up her mind even before consulting the coparceners to adopt the particular boy. It was there held that in those circumstances, the refusal of the coparceners was proper and that the adoption was invalid. No general rule can, therefore, be laid down that in all cases and under all circumstances the refusal of a sapinda to give his assent to the adoption on the ground that the widow refused to accept the boy of his own in adoption as a proper refusal. The question has to be considered on the facts of each case. There may be several objections to adopt the boy offered. The boy may be grown up, the boy may not be quite intelligent or up to the mark or be even subject to constant illness. After all, the boy proposed to be adopted should be one whom the widow expects or finds a reasonable expectation that he would be affectionate and attached to her. All these are matters which have to be considered before selecting the boy. It cannot, therefore, be said that the refusal of the widow in all cases to accept the son of the sapinda in adoption was not justified and on that ground the refusal of the sapinda was proper. In the circumstances of this case, it cannot be said that there was a bona fide offer by the plaintiff or even an offer at all as I read the language of the notice to give his only son in adoption.
15. For these reasons, the judgment appealed against must be confirmed and the Letters Patent Appeal must be dismissed with costs.
Viswanatha Sastri J.
16. This is an appeal by the plaintiff, a Hindu reversioner, against a judgment of Rajamannar J. (as he then was) upholding the validity of the adoption of the minor defendant 2 by defendant 1, the widow of the plaintiff's deceased elder brother. I should have been content to express my concurrence with the conclusion of the learned Judge, were it not for the strenuous arguments of the learned counsel for the appellant and the importance of the question involved. It is remarkable that even after nearly a century of exposition of the principles of Hindu law relating to adoption by the High Courts and the Judicial Committee, questions of such frequent recurrence as those involved in this appeal, still remain the subject of debate. This case demonstrates the need for an immediate codification of this branch of the Hindu law and the avoidance of protracted and expensive litigation which has often followed adoptions.
17. Venneti Govindaraju had a son Veera Bhadraraju by his first wife and two grandsons by Veerabhadraraju, nanely, Harigovind and Sundararama. Veerabhadraraju and his mother predeceased Govindaraju. Govindaraju in his advanced age, took for his second wife a lady of the name of Bangaramma, an event which led to disruption and strife in this family of humble means. Govindaraju became divided from his two grandsons, Harigovind and Sundararama, the two latter, however, continuing to be joint in estate. Harigovind died on 14th November 1937 leaving a widow, defendant 1 and a minor daughter who is not a party to these proceedings. On 11th May 1938, the widow adopted defendant 2 with the consent of Govindaraju her husband's grandfather and in spite of the dissent and disapproval of Sundararama, who now challenges the validity of the adoption on the following grounds: The plaintiff Sundararama and the deceased Harigovind having been undivided, the consent of the former to the adoption was indispensable to its validity. The refusal of consent in this case by the plaintiff was proper. Assuming without admitting that the refusal of the plaintiff's consent was improper the widow had no right to travel outside the joint family of which her husband was a member at the time of his death and rely on the consent of a divided sapinda, namely, her father-in-law's father. It will be convenient to deal with the latter part of the argument before I consider the propriety of the refusal of the plaintiff's consent to the adoption.
18. There is no text of Hindu law which has a direct bearing on the question and the law applicable has to be gathered mainly from the decisions of the Judicial Committee. The learned editor of Edn. 10 of Mayne's Hindu Law, on an examination of the relevant cases, states his conclusion in these terms :
'It is fairly clear that even where the coparceners improperly refuse their consent, she will not be entitles to adopt with the consent of her husband's divided kinsmen, as it would be introducing into the joint family a coparcener against their will.' (Page 219.) The appellant maintains that this is a correct statement of the law. The authorities relied upon by the learned author in support of his conclusion will be examined in the course of this judgment. Looking at the matter apart from authority, a Hindu coparcener can introduce against the wishes of other coparceners a new coparcener either begotten or adopted by him if he is sonless. His widow too, if he dies sonless, can introduce such a coparcener by adoption irrespective of the wishes of the surviving coparceners if she has her husband's permission to adopt. If she has not her husband's permission, then she is required to take the consent of his gnatis to what is considered on all hands a pious and meritorious act, not because as I shall endeavour to show of the effect of an adoption on the rights of other coparceners but by reason of her assumed dependence on the male members of her husband's family. The position is the same whether the husband died a divided member or as a member of an undivided family. If the consent of the husband's kinsmen has been obtained the widow's power to adopt is co-extensive with that of the husband. Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma, 22 Mad. 398 : 26 I. A. 113.
19. The law of adoption has very little textual authority and has been built up mostly by case law. This judge-made law was in its formative stages when the Ramnad case, 12 M. I. A. 397 : 1 Beng, L. R. 1, the Berhampore case, 1 Mad. 69 : 3 I. A. 154 and the Guntur case, 1 Mad. 174 : 4 I. A. 1 were decided. The Judicial Committee, if I may say so without meaning any disrespect, were feeling their way in an unexplored tract and sailing in uncharted seas, at the time when these cases were decided. The pundits who had been advising the Sadar Court began to be considered from the days of Holloway J. as obstacles in the way of administration of justice and their opinions met with scant respect. It was left to the Judicial Committee in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1, to point out the value of these opinions as containing, in many cases, an authentic and acceptable interpretation of Hindu law. The abolition of the pundit system threw upon the Courts, manned in those days mostly by English Judges, the heavy responsibility of ascertaining and applying the rules of a legal system with which they were necessarily unfamiliar. Where the doctrines of one system of law have to be applied by lawyers of another, there is always the possibility of unconscious reasoning in the background of notions and ideas wholly foreign. The Hindu law of inheritance was once upon a time described as 'a law of inheritance of the offerings of the dead' by western lawyers. It was left to a later generation to realise that consanguinity or blood relationship was the governing rule of inheritance under the Mitakshara law. With reference to adoptions, judicial opinion was oscillating for a considerable time between the secular and religious motives and effects of an adoption as a text of its validity. Is religious efficacy the touchstone of the validity of an adoption or is the effect of an adoption on the proprietary rights of other persons the decisive consideration? As late as 1933, the Judicial Committee observed in Amarendra's case,
'Their Lordships think that in dealing with the arguments which have been addressed to them, it is important to bear in mind the essential features of the doctrine of adoption among orthodox Hindus, as they are conscious that these may have been to a certain extent blurred by the mass of case-law which has been accumulated in the last three quarters of a century.'
In making these observations, their Lordships must have had in view some of their own earlier pronouncements. On many matters arising in connection with adoption by a Hindu widow, the law was for a considerable time in a fluid state e. g., the limits to the exercise of the power of adoption by a widow, the mode and manner of consulting sapindas, the effect of refusal of consent by one or more of the sapindas, the reasons for which a sapinda could properly refuse consent, the effect of an adoption on antecedent alienations by the widow and so on. In my judgment it is not right to treat isolated passages in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 and the Berhampore case, 1 Mad. 69 : 3 I. A. 154 or the restatement of the effect of those passages in later cases, like Veerabasavaraju v. Balasurya Prasad Rao, 41 Mad. 998 : A. I. R. 1918 P. C. 97, as finally or decisively settling the law. The law on this subject cannot be said to have reached a high degree of precision and has to be gathered from a series of decision, each of them concerned with the circumstances of a particular case in which the principle involved has been progressively though not always consistently formulated.
20. Does the Hindu law invalidate an adoption by a Hindu widow which is authorised and assented to by her husband's divided father or grandfather but is opposed by her husband's only undivided brother? For the purpose of this argument, it is assumed that the dissent of the undivided coparcener was improper. The well known text of Vasishta 'Let not a woman give or accept a son except with the assent of her Lord' is the starting point of discussion. The need for outside assent arises from the presumed incapacity of women for independence as illustrated by Yajnavalkya in chap. 1 verse 85.
'Let her father protect a maiden; her husband a married woman; sons in old age; if none of these, other gnatis (kinsmen). She is not fit for independence.'
Another text of Yajnavalkya, chap. 2, verse 130, relating to adoption runs thus: 'He whom his father or mother give in adoption is Dattaka (a son given).' The genius of Hindu law, as remarked by Ellis, allows substitution in almost every conceivable case. The subsequent commentators developed the law by a process of interpretation. The Smritichandrika adopts a rule of interpretation familiar in Hindu law, that where there is no absolute prohibition, you can infer assent especially if the act is meritorious. Devanna Bhatta, the author, considers that by the use of the disjunctive in the text 'he whom his father or mother gives' Yajnavalkya suggests the independence of women in the matter of adoption. At the same time there is the other text of Yajnavalkya that woman is not fit for independence. The author reconciles the two seemingly contradictory positions by laying down that a Hindu widow could give her son in adoption if she be authorised by an independent male. Presumably he would apply the same rule to the taking in adoption of a son by a Hindu widow. Indeed, Nandapanditha stated that the same rule should apply both to giving and taking, only he applied the rule differently. In the case of an adoption by a Hindu widow a text of Dattaka Mimamsa by Vidyaranyaswami cited in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 stated 'In the same way the adoption of a son by a widow with the permission of the father, etc., cannot be censured in the Kali age.' This author construes the text of Yajnavalkya in the same manner as Devanna Bhatta and after laying down in distinct terms the religious necessity for an adoption, says that it must be with the assent of the father, i. e., father of the deceased husband, etc. The introduction of the word 'etc.' in the above passage was seized upon by the later exponents of Hindu law and the thesis was developed that the reference to the word 'father' i. e., the father-in law of the widow, in the above passage, was only illustrative and not exhaustive. As observed by Holloway J. Hindu commentators saw as great virtues in an et cetera as Coke, the Commentator on Littleton. Professing to submit to the rule that a woman is not fit to act independently by herself, the Hindu legists first circumvented it by stating that the defect was cured by the permission of her father-in-law for an adoption by her. The next step was to hold that the reference to the permission of the father-in-law was merely illustrative and not exhaustive and the consent of the other kinsmen was sufficient. By this process of reasoning the Hindu lawyers of a century ago arrived at the conclusion that in the Dravida country a Hindu widow who had not her husband's permission could adopt a son with the consent of her husband's gnatis or kinsmen. Thus law was brought into conformity with the current sentiments and usages of the people. This statement of the law by the pundits received high judicial sanction from its acceptance by the Judicial Committee in the well known Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1.
21. I have sketched in brief outline the early development of this branch of the law with a view to show that according to the traditional view of Hindu law, the question of sonship by adoption to a deceased person in no way depended on the title or absence of title of other persons to the estate either in prasenti or in reversion and that the devolution of property is a temporal incident or consequence of the religious act of the widow in making an adoption for the spiritual benefit of her deceased husband. The root of the matter is that permission of the husband, or in its absence, the assent of his father or other gnatis was required for an adoption by the widow by reason only of her dependence, adoption being in itself a meritorous act. To-day it cannot be said that Hindu women are dependent as in the days of Yajnavalkya. The religious motive also is not appreciable in modem adoptions which are made not so much for the purpose of securing the repose of the soul of the deceased as for the purpose of diverting the course of succession or dispossessing an heir in whom inheritance has already vested. But the maxim cessante rations legis cessat ipsa lex has no application, for the Court cannot enquire into the present utility of this ancient doctrine which has become part of the law. We cannot annul it because it has survived its usefulness and stands merely as a vestigial relic.
22. The argument for the appellant in effect makes what is merely accessory or consequential, namely, the divestment of proprietary rights by an adoption, as the main criterion of its validity. The latest view of the Judicial Committee on this topic is found in two recent cases. It must now be taken to be established by Amarendra's case, , that the validity of an adoption is to be determined primarily by a consideration of the religious necessity for and efficacy of a sonship under the Hindu law, that the adoption of a son to her husband by a Hindu widow is a meritorious act and that succe-sion to property is only a secondary consideration. The Judicial committee quoted with approval the following passage from the Berhampore case, 1 Mad. 69 : 3 I. A. 154:
'A distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle which Holloway J. has himself strenuously insisted upon elsewhere, viz., that the validity of an adoption is to ha determined by spiritual, rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.'
Their Lordships then proceeded to observe:
'Having regard to this well-established doctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man; see in this connection Suryanarayana v. Venkataramana, 29 Mad. 382 : 33 I. A. 145. The Hindu law itself sets no limit to the exercise of the power during the lifetime of the donee, and the validity of successive adoptions in continuance of the line is now well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board.'
Their Lordships held that the limit to the exercise of the power of adoption by a Hindu widow was reached only where her husband had himself left a son, natural or adopted, and that son had himself left children or his own widow to provide for the continuance of the line by an adoption. The mere fact that the son had attained majority and marriageable age before he died was held ineffective to put: an; end to the power of the widow to adopt.
23. These observations in Amarendra's case which profoundly modified the effect of previous decisions were accepted and acted upon by the Judicial Committee in Ramasubbayya v. Chenohuramayya, where it was held that in determining whose assent should be taken by a Hindu widow in the Dravida country for an adoption, interest in the property which would be defeated by the adoption was not the sole or supreme test. In this case an adoption made by a Hindu widow with the assent of the agnatic sapindas of her husband but without the consent of his daughter's son, who would be the next reversioner after the death of the widow, was held to be valid. All the earlier cases on the subject were reviewed by their Lordships and the basis of their decision was that the test of the validity of the adoption was the propriety of the substitution of a son of the deceased and not the consequent devolution of property. In short the Board reiterated the view that the assent of a masculine mind was required by reason of the presumed incapacity of women for independent action and as evidence of the propriety of the adoption and not because it in any way operated as a waiver or surrender of the proprietary rights of the party by whom assent was given. Reference may be made in this connection to the decisions of the Judicial Committee which held that divestment of property vested in another as a surviving coparcener of heir at law is not the test or deciding factor of the validity of an adoption. See Pratapsingh Shivsingh v. Agarsinghji Baisinghji, 43 Bom. 778 : A.I.R. 1918 P. C. 192, Madanamohan Deo v. Purushotham Deo, 41 Mad. 855 : A.I.R. 1918 P. C. 74, Yadao v. Namdeo, 49 Cal. 1 : A. I. R. 1922 P. C. 216 and Bhimabai v. Gurunathgouda , Vijaysinghji v. Shivsingji , Anant Bhikkappa v. Shankar Ramahandra . The limiting principle of a widow's power of adoption is not now rested on any theory of divestiture of an estate vested in others.
24. It is contended for the appellant that the several decisions of the Judicial Committee above referred to dealt with the case of an adoption by the widow of a divided coparcener and the position with reference to the widow of an undivided coparcener is wholly different.
25. Reference is made to the following observations of the Judicial Committee in the Ramnad case, 12 M. I. A. 397 : 1 Bengali. L. R. 1 referring to the position of the widow of a coparcener who died as a member of a joint family :
'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 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.' (Italics are mine.)
Dealing with the position of the widow whose husband died a divided member their Lordships stated :
'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.'
The actual decision of their Lordships in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 was that according to the law prevalent in the Dravida country a Hindu widow not having her husband's permission might, if duly authorised by his gnatis (kinsmen), adopt a son to him. The reason for requiring the consent of the kinsmen was also stated as follows :
'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.'
Whether it is an undivided or a divided family the reason for adoption is the same, the spiritual benefit of the deceased husband of the widow. In either case the need for taking outside assent is the same, namely, the presumed incapacity of women. Division does not affect her personal dependence or give her independent status to alter by her own volition by making an adoption, the succession to the estate which she holds as the widow of her husband. Even according to the Judicial Committee, whether the family is divided or undivided the consent of the father-in-law alone 'the natural guardian and venerable protector' of the widow is sufficient to validate her act and there is no need to take the consent of the other members. Their Lordships observed that in an undivided family where there was no father-in-law in existence, the consent of the coparceners who would take the husband's share of the joint family property would probably be required. This observation of the Judicial Committee was obiter inasmuch as the Privy Council dealt with the case of the widow of a separated member. This Court was inclined to the view that in an undivided Hindu family where there was no father in law, the consent of the manager and the seniormost member of the undivided family might alone be sufficient : See Venkatakrishna v. Annapurnamma, 23 Mad. 486 : 10 M. L. J. 73, Subramaniam v. Venkamma, 26 Mad. 627 : 13 M. L. J. 239. Even in Ganesa Ratnamiyar v. Gopala Ratnamiyar, 2 Mad. 270 : 7 I. A. 173 the assent of the managing member of the family was assumed to be sufficient. The literal application of the rule suggested by the obiter dictum of the Judicial Committee in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 with reference to undivided families would lead to many difficulties in practice. Suppose there are five surviving coparceners and three of them assent to an adoption by the widow and two dissent. Is the adoption to be held invalid on the ground that you cannot force a coparcener against the wishes of the dissenting minority Suppose a divided father-in-law consents to an adoption by a widow which is opposed by the undivided cousins of her deceased husband. Is the adoption in such a case invalid Suppose again the husband was joint at the time of his death and the coparceners separate after his death. It is impossible to obtain the consent of the undivided coparceners. The consent of the divided sapindas has been held to be sufficient in such a case Panyam v. Ramalakshmamma : AIR1932Mad227 . The Judicial Committee observed that the consent of the father-in-law would be necessary and sufficient whether the family was divided or undivided. That the consent of the sapinda, whether he is a coparcener or a divided member is required by reason of the presumed incapacity of women for independent action and not by reason of the effect of an adoption on the proprietary interest of the coparceners or reversioners was not firmly established till a later date in the evolution of the judge-made law. The cases already cited with reference to the effect of an adoption on the divestment of the estate vested in a reason other than the adopting widow, would bear out my statement. So far as the widow's power of adoption is concerned, the distinction between vesting by inheritance and vesting by survivorship has been in my judgment, obliterated by the Judicial Committee in Pratapsingh Shivsingh v. Agarasinghji Rajansinghji, 43 Bom. 778 : A. I. R. 1918 P. C. 192, Yadao v. Namdeo, 49 Cal. 1 : A. I. R. 1922 P. C. 216 and Amarendra's case, 12 Pat. 642 : A. I.R. 1983 P. C. 155.
26. The next case relied upon by the appellant is the decision in the Berhampore case, 1 Mad. 69 : 3 I. A. 154 P. C. which accepted the statement of the law in the Travancore case, 8 Mad. J 58 :
'If it were necessary, which in this case it is not to decide the point, their Lordships would be unwilling to dissent from the principle recognised by the Travancore case, 8 Mad. Jurist 58, viz , that the requisite authority is, in the case of an undivided family, to be sought within that family ..... The Hindu wife upon her marriage passes into and becomes a member of that family. It is open to that family that, as a widow she has her claim for maintenance. It is in that family that, it the strict contemplation of law, she ought to reside. It is in the members of that family that she must presumably find such councillors, and protectors as the law makes requisite for her. 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 kinsman of her husband'. (Italics mine.)
In the Guntur case (Vellanki Venkatakrishnarao v. Venkata Ramalakshmi, 1 Mad. 174 : 4 I. A. 1 decided a little later than the Berhampore case, l Mad. 69 : 3 I. A. 154 the Judicial Committee explained the reason of the rule requiring the assent of sapindas in these terms :
'Their Lordships think, it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow, and that all which this committee in the former case (Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 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.'
It will be observed that the judgment of the Judicial Committee in the Ramnad case, 12 M. I. A. 397 : 1 Beng. L. R. 1 the Berhampur case, 1 Mad. 69 : 3 I. A. 154 and the Guntur case, 1 Mad. 174 : 4 I. A. 1 were all delivered by Sir James W. Colvile whose observations above quoted were with respect to matters which did not arise directly for decisions in those cases. In the Berhampore case, 1 Mad. 69 : 3 I.A. 154 their Lordships assumed that the surviving coparceners of the husband would normally be his nearest sapindas and therefore they observed that the widow could not at her own will travel outside the family to get the requisite consent for an adoption. Their Lordships could not have intended that when the nearest sapinda was a divided father-in-law and a remote sapinda, say a cousin, was an undivided member, the consent of the latter alone counted and the former could be ignored altogether. In the Guntur case, 1 Mad. 174 : 4 I.A. 1 their Lordships refer to ''the family council,' an expression which is far too general and comprehensive. It could not be that their Lordships intended that the whole array of sapindas and samanodakas of a deceased person should be summoned for a meeting to consider the propriety of an adoption by the widow. The subsequent decisions qualified the generality of this observation by restricting the ''family council' to the sapindas nearest in degree. see Subramaniam v. Venkamma, 26 Mad. 627 :13 M.L.J. 239. A further development of the case law was that the consent of the majority of the nearest sapindas was sufficient, the consent of the entire body of the nearest sapindas being unnecessary: see Krishnayya v. Lakshmipathi, 43 Mad. 650: A. I. R. 1920 P.C. 4. A still further refinement of this doctrine was that it was the duty of the widow to ask the consent of every one of the nearest sapindas and she could not ignore some of them on the ground that she had procured the consent of the majority or on the ground that the consent would be refused even if asked for: see Venkamma v. Subramaniam, 30 Mad. 50 : 34 I.A. 22, Kristnayya v. Lakshmipathi, 43 Mad. 650 : A. I. R. 1920 P.C. 4. If one of two nearest sapindas of equal degree improperly refuses assent the assent of the other alone is sufficient and there is no question of the decision of a majority: Krishnayyarao v. Venkata Kumara Mahipati Surya Rao . I am referring to these later developments of the law to show that the general expressions and observations found in the early decisions of the Judicial Committee have been considerably qualified and modified by the same tribunal to suit different facts and circumstances. Indeed in the Berhampore case, l Mad. 69 : 3 I.A. 154, the Judicial Committee does not lay down any inexorable rule that the widow could in no event adopt even if the surviving member or members of the joint family improperly refuse assent to an adoption and even though the nearest divided sapindas give their assent. All that was said was that the widow could not at her will travel outside the undivided family and obtain the authorisation from a separate and remote kinsman.
27. The Hindu widow in making an adoption is exercising a power which she alone can exercise. In legal theory this power is vested in her in order to secure the spiritual welfare of her husband's soul. The assent of the sapinda is required only by reason of her supposed incapacity for independent action and not by reason of the effect of an adoption on the proprietary rights of coparceners or reversioners. The early decisions mixed up the two considerations, but later decisions of the Judicial Committee have disentangled them and settled the law in this sense that property considerations are no more paramount in the case of an undivided family than in the case of a divided family and in either case, the nearest sapindas must be asked to assent to the adoption. The argument of the appellant's counsel would if accepted lead to anomalous results. Suppose there are two undivided brothers A and B who died sonless one after the other, each leaving his widow. The estate would vest in the widow of the last surviving coparcener under the Hindu law as it stood before the recent legislation. There is no male coparcener left in the undivided family. In such a case is it to be said that neither widow is capable of adopting with the consent of the divided sapindas. If she makes an adoption with such consent, is it to be declared invalid on the ground that she travelled outside the joint family? It would amount to a denial of the right of adoption in those cases for which it was primarily intended, if, the appellants argument is accepted.
28. I need not refer to the other cases cited at the Bar at any great length. The decision in Veerabasavaraju v. Balasuryaprasadarao, 41 Mad. 998 : A.I.R. 1918 P.C. 97, merely reproduces the substance of the passages in the Ramnad case, 12 M. I. A. 397 : l Beng. L. R. 1. It may be conceded that Mr. Amir Ali who delivered the judgment of the Board in Veerabasavaraju v.Balasuryaprasada Rao, 41 Mad. 998 : A. I. R. 1918 P. C. 97 understood the Ramnad case, 12 M. I. A. 897 : l Beng. L. R. 1 and the Berhampore case, 1 Mad. 69 : 3 I.A. 154 as laying down that one of the reasons for requiring the consent of the sapindas to an adoption by a widow was their interest, actual or potential, in the estate of the deceased. This view is however no longer the law as explained in Amarendra's case and in Ramasubbayya v. Chenchuramayya, I.L.R. (1948) Mad. 362 :A. I. R. 1947 P. C. 124. Similarly, in Bhimabai v. Gurunathagawda Khandappa Gowda a case governed by the Maharashtra school, the Judicial Committee shortly re-stated the effect of the decisions in the Ramnad case, 12 M. I. A. 897 : 1 Beng. L. R. 1 and in the Berhampore case, 1 Mad. 69 : 3 I. A. 154. In Kristnayya v. Lakshmipathi, 43 Mad. 650 : A. I. R. 1920 P.C. 4 the Board referred to Veerabasavaraju v. Balasurya Prasadarao, 41 Mad. 998 : A.I.R. 1918 P.C. 97, as regards the necessity for obtaining the consent of the nearest sapindas and observed :
'This does not mean that the consent of a near sapinda who is incapable of forming a judgment on the matter, such as a minor or a lunatic, is either sufficient or necessary; nor does it exclude the view that, where a near relative is clearly proved to be actuated by corrupt or malicious motives, his dissent may be disregarded. Nor does it contemplate cases where the nearest sapinda happens to be in a distant Country, and it is impossible without great difficulty to obtain his consent, or where he is a convict or suffering a term of imprisonment.'
These observations, it may be observed, are perfectly general and would apply both to a case where the husband died a member of an undivided family and a case where he died a divided member.
29. So far as the decisions of this Court are concerned, it is unnecessary to refer to any case earlier than the Pull Bench decision in Seshamma v. Narasimharao, I.L.R. (1940) Mad. 454 : A.I.R. 1940 Mad. 356 which decided that a widow could validly adopt a son with the consent of the agnatic sapindas of her husband and without reference to the daughter's son, though the latter happens to be the next reversionary heir. This view was approved by the Judicial Committee in Ramasubbayya v. Chenchuramayya, . The ratio decidendi of these cases is that the assent of the sapindas is required not by reason of their proprietary interest, actual or reversionary, but by reason of the doctrine that a woman is unfit for independent action. A case coming very near the present one was decided by this Court in Chellathammal v. Kalitheertha Pillai, I. L. R. (1943) Mad. 107 : A.I.R. 1942 Mad. 606. In that case the only surviving undivided coparcener was of unsound mind and the widow made an adoption with the consent of the divided sapindas of her husband. This Court upheld the validity of the adoption. The learned Judges no doubt observed that it was not necessary for them to consider a case where there was an undivided sapinda capable of assenting and the widow adopted a son in spite of his dissent but with the consent of divided sapindas. That is the present case.
30. I do not see the difference between a case where the surviving coparcener is a lunatic and therefore incapable of giving his consent and a case where he is improperly withholding his consent. In either case there is justification for the widow to travel outside the family and seek the consent of the divided sapindas. Indeed the Judicial Committee in the Ramnad case, 12 M.I.A. 397: 1 Beng. L. R. 1 stated that whether the family is divided or undivided, the consent of the father-in-law is necessary and sufficient to validate an adoption by the widow. In my judgment the father-in-law's father stands in a similar position as the 'guardian and venerable protector' of the widow. The case may be put on a broader ground also. Once it is recognised that an adoption by a widow of a son to her deceased husband is a meritorious act, that its propriety has to be judged from a religious or spiritual point of view, the matter of succession to property being a secondary consideration, that the consent of the widow's father-in-law, or in his absence, the consent of sapindas, is required by reason of the presumed incapacity of a woman for independent action, it seems to me that the principle which applies in the case of a divided family should, with equal reason be applied to the case of an undivided family. The decision in Chellathammal v. Kalitheertha Pillai, I.L.R. (1943) Mad. 107 : A. I. R. 1942 Mad. 606 proceeds on this basis. I am therefore constrained to disagree with the opinion of the learned editor of Edn. 10 of Mayne's Hindu law quoted at the beginning of my judgment.
31. It now remains to deal with the first contention of the appellant, that the refusal of consent by the plaintiff to the adoption was proper. I have already stated that there had been considerable ill-feeling between Govindaraju and his two grandsons due to the former taking a second wife and submitting himself to the influence of his second wife and her relations. Govindaraju had settled a good portion of his landed property on his second wife, who in her turn transferred it to her relations in her parental family. It is contended that on the death of Harigovind, Govindaraju and his wife wanted the karnam's office held by Govindaraju as well as the family properties belonging to the share of Harigovind should go to a close relation of Bangaramma to the exclusion of the plaintiff and that they, therefore, instigated Harigovinda's widow, who was young and inexperienced, to adopt defendant 2, a relation of Bangaramma's brother. The correspondence, Ex. P-2 series, Exs. D-4a, D-5a and D-6a between the widow and the plaintiff with reference to the adoption shows that the latter refused his Consent to the adoption of defendant 2 on the following grounds :
(1) The boy proposed to be adopted is afflicted with leprosy.
(2) The boy is from of his enemy's camp (i.e.) the camp of Bangaramma.
(3) The plaintiff himself had a son and his wife who was then enceinte might present him with another son who could be adopted by the widow.
(4) There is no hurry for the adoption and the widow could and should wait and adopt a boy from the Vennati family or a grandson that might be born to her own infant daughter.
The learned advocate for the plaintiff sought to support these grounds of refusal by referring to the evidence at length. It is true that two relations of the boy were afflicted with leprosy but there is evidence that the boy himself had no leprous taint at all. The first ground, therefore fails. The second ground is a reason personal to the plaintiff, namely, that the proposed boy comes from the camp of his enemy. In Krishnayyarao v. Venkata Kumara Mahipathi Suryarao , the Judicial Committee held that the refusal of consent by a sapinda to the adoption of a boy on the ground that the boy proposed was the son of a longstanding enemy is not proper and that the refusal should be disregarded by the widow. The position is much the same in the present case. The other grounds may be considered together. Having regard to the object of an adoption by a Hindu widow it can never be a valid objection to it that it is made soon after the death of her husband. The sooner the better. It is no doubt true that the adoption of a near gnati is recommended by the commentators and the adoption of an only son is prohibited by the Smrities. But these are merely moral precepts which do not affect the validity of an adoption. The plaintiff did not, in so many terms, offer his only son in adoption possibly because the giving of an only son in adoption is not recommended either by Hindu law or by popular sentiment. Indeed the widow took up this position. The appellant's counsel relied on the observations of Bhashyam Aiyangar J. in Subrahmaniam v. Venkamma, 26 Mad. 627: 13 M.L.J. 239, to the effect that there is nothing improper in a sapinda proposing to give his assent to the widow adopting his own son if such son happened to be a near 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. He also referred to the decision of Patanjali Sastri and Bell JJ. in A. S. Nos. 96 and 256 of 1944 wherein similar observations are to be found. In the un-reported case there were two sapindas each of whom had more than one son and there was an offer of one of the sons of either sapinda. It was held that the sapindas were within their rights in refusing to give their assent to the adoption of a stranger or a sapinda more distant than their sons. The refusal of assent on the part of the nearest sapindas on the ground stated by them was held to be proper and the adoption by the widow ignoring their dissent was declared invalid. Their Lordships do not indicate any solution for the problem which would arise if each of the two sapindas insisted upon the adoption of his own son as a condition of his consent. Here the plaintiff, at the relevant period, had an only son though he was hopeful of having further male progeny. He did not offer his only son in adoption in so many words but assuming there was a hint of such an offer in the correspondence, the widow did not like the idea of depriving him of his only son, the same being unshastraic. That in such circumstances the widow could ignore the refusal of assent by the plaintiff was laid down by Sir John Wallis C. J. and Hannay J. in Venkatapathi v. Punnamma, 1915 M. W. N. 286 : A. I. R. 1916 Mad. 629. After referring to the dictum of Bhashyam Aiyangar J. in Subramaniam v. Venkamma, 26 Mad. 627: (13 M. L. J. 239), the learned Judges observed :
'Assuming this to be so, the circumstances of the present case are very different, because here the next reversioner has no son and if a son were born to him, the widow would be entitled to object that the adoption of an only son was improper and, therefore, it would be necessary to wait for a second son to be born to him before he could, with propriety, insist upon this condition. We think that even assuming that refusal under the circumstances mentioned by Bhashyam Aiyangar J. is justifiable it cannot be said that in the circumstances of the present case the refusal was justified.'
The ground of refusal in that case appears to be the fact that according to the Hindu notions, an adoption of a near sapinda is preferable to the adoption of one more remote. But I think it will be going too far to say that a widow is bound to adopt the only son of the assenting sapinda or wait until he has two sons, a possibility which may never occur. In A. S. No. 9 of 1946 recently decided by Rajamannar C. J. and Balakrishna Aiyar J. it was observed that the observations of Bhashyam Aiyangar J. in Subramaniam v. Venkamma, 26 Mad. 627 : 18 M. L. J. 239, above referred to were obiter.
32. With the greatest deference to that great Judge, it seems to me to be questionable whether refusal of consent by a sapinda to an adoption by the widow except on condition that his son should be adopted, is a valid or proper refusal. In the Medur cases, Venkatanarasimha Appa Row v. Parthasarathi Appa Row, 37 Mad. 199 : 41 I. A. 51, as well as in Rajendraprasad Bose v. Gopal Prasad Sen , the Judicial Committee have freely applied the law relating to powers to test the validity of an adoption made by a widow pursuant to her husband's authority. The sapindas' power of assenting or refusing assent to an adoption by a Hindu widow is, in my opinion, a fiduciary power which must be exercised for the end designed, namely, the substitution of an heir by adoption to the deceased person and not for the purpose of advancing or prejudicing the personal interest of this or that sapinda. The sapindas are to be regarded as a 'family council', the natural guardians of the widow, and the protectors of her interests. In giving or withholding their consent it is their duty, in this capacity to form an honest and independent judgment on the advisability or otherwise of the proposed adoption, in and with reference to the widow's branch of the family: Krishnayya Rao v. Venkata Kumara Mahipathi Suryarao . The refusal of assent on the ground of loss or injury to the reversionary or coparcenary interest of the dissentient sapinda has always been held to be an improper refusal : Venkataramaraju v. Bapamma, 89 Mad. 77 : A. I. R. 1916 Mad. 557, Kamayya Bhukta v. China Sooranna : AIR1934Mad48 . Such a conflict between duty and interest has always been resolved by the Courts in only one way. An assent hedged in with a condition that the son of the assenting sapinda alone should be adopted and none else may be in effect a refusal and an improper refusal. It amounts to depriving the widow of her choice of the boy to be adopted and forcing the sapinda's son on her in his own selfish interests. If there are several sapindas of the same degree having sons of their own, each of them might insist on the adoption of one of his own son and they are rarely likely to agree on any particular boy. These considerations would have to be kept in mind in deciding whether the obiter dictum of Bhashyam Aiyangar J. in Subramaniam v. Venkamma, 26 Mad. 627 : (18 M. L. J. 239), is to be accepted as a correct enunciation of the law applicable to all cases and circumstances. In the present case, the learned Judge whose judgment is now under appeal, has expressed his conclusion on this part of the case in these words :
'I am of opinion that the plaintiff in this case was in these circumstances, not actuated by proper motives in withholding his consent. The widow was therefore justified in disregarding the refusal of the plaintiff. Admittedly the nearest sapinda then would be Govinda Raju, the paternal grandfather of her deceased husband and his consent was sufficient to enable her to make a valid adoption.' With this conclusion, I am in entire agreement.
33. It, therefore, follows that this Letters Patent appeal fails and must be dismissed with costs.