1. The question for decision is whether the 1st plaintiff is the adopted son of the deceased Lakshmipathi Nayanim Varu.
2. Lakshmipathi died about 30 years ago. His widow the 2nd plaintiff adopted the 1st plaintiff on 2-11-1908. The District Judge finds that she failed to obtain the consent of Venkataramana Rao and Venkata Rao, two sapindas of the deceased who were divided from him. He finds further that the 1st defendant who was the undivided brother of the deceased and who admittedly refused to give his consent to the adoption did not withhold it from improper motives. He also holds that the 2nd defendant who gave his consent in writing (Exhibit B) did so probably on account of some misrepresentation and that the 3rd defendant never gave his consent. He was therefore of opinion the adoption was invalid. All these findings are disputed in appeal.
3. In the absence of any authority from her husband the 2nd plaintiff was bound to obtain the consent of sapindas. As her husband died a member of an undivided family, the requisite authority mast be obtained from the member of that undivided family. The question therefore whether she obtained the consent of Venkata Rao and Venkataramana Rao, is immaterial. We have also no hesitation in holding that the judge has arrived at the right conclusion. We think the Judge is also right in deciding that the 3rd defendant did not give his consent and that the letter (Exhibit A) alleged to be written by him is not proved. The story told by the plaintiff's witness No. 9 of his having gone to the house of the 3rd defendant where he found one Subbia writing a letter, which was afterwards signed by the 3rd defendant who told the witness when he was asked what the letter was about that ' he was writing about an adoption to be made' by the 2nd plaintiff is improbable. The 3rd defendant defendant's witness No. 1 denies that he gave his consent or wrote the letter Exhibit A. He admits however that plaintiffs' witness No. 2 asked him to give his consent which he refused. He was not asked to state his reason.
4. The 2nd defendant gave his consent (Exhibit B). We are unable to find that there was any misrepresentation. There is no evidence in support of that plea. The evidence of the 1st defendant and of his 2nd witness proves that the plaintiffs' witness No. 2 the son-in-law of the 2nd plaintiff wanted the 1st defendant to give her Rs. 10,000, as the maintenance which she was receiving was inadequate, and she wanted to make some provision for her daughter and grand-children. It was also alleged that the 1st defendant had appropriated her jewels. The 1st defendant denied the appropriation and offered to pay Rs. 6000 to the 2nd plaintiff which she declined. Some months afterwards she sought his consent to the adoption which was refused. Thereupon she made this adoption in accordance with an arrangement with the natural father of the 1st plaintiff the adopted boy, under which she was to get absolutely one fourth of her husband's property. There is little doubt therefore that she made the adoption to get some property for herself to give to her daughter and grandchildren.
5. It is contended on behalf of the Respondent that the consent of all the co-parceners, the first defendant and his sons the 2nd and 3rd is necessary to validate the adoption and reliance is placed on the observation of the Judicial Committee in the Ramnad Case that it would be unjust to allow the widow to defeat the interest of the brothers of the deceased husband by introducing a new-coparcener against their will. Reference is also made to the Travancore Judgment, Ramasami Iyer v. Bhagawati Ammal (1873) 8 Mad. Jur. 58 which has apparently received the approval of the Judicial Committee in Sri Raghunatha v. Sri Brozo Kishore (1876) 3 I.A. 154. It is also urged that the widow's motive was improper and that consent was rightly refused. On the other hand it is urged that all that the co-parceners are entitled to consider is whether the widow proposes to make the adoption in the proper and bona fide performance of the religious duty of substituting an heir by adoption to her deceased husband and once the expediency or propriety of an adoption is established, the motive operating on the mind of the widow in making anadoption is immaterial, and no weight should be attached to the; defendant's refusal on improper grounds to consent to an adoption.
6. We think it unnecessary to decide these questions.
7. It may be that in an undivided family the consent of the manager to whom the regulations of all the concerns of the family is delegated by law or by the members, may be sufficient to validate an adoption. See Sri Baghunadha v. Sri Brozo Kishore (1876) 3 I.A. 154. Mr. Justice Bashyam Iyengar was apparently of that opinion. Subbramanyatn v. Venkctmma I.L.R. (1903) Mad. 627.
8. In the case before us the 1st defendant has refused his consent. Nor has the 2nd plaintiff obtained the consent of the majority of the co-parceners which in certain circumstances might be binding on the joint family. It is only the 2nd defendant who has given his consent. Whether the 3rd defendant gave any reason or not does not appear. The 1st defendant cannot be said to have acted from improper motives in declining to sanction an adoption made after long delay to enable the widow to alienate the property outside the family. We agree with the Judge therefore that the adoption was made without the requisite authority. We dismiss the appeal with costs. The appellant will pay to Government the court-fee payable on the Appeal Memorandum.