Skip to content


Sri Raja Ravu Sri Krishnayya Rao and anr. Vs. Rajah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1928)55MLJ894
AppellantSri Raja Ravu Sri Krishnayya Rao and anr.
RespondentRajah
Cases ReferredKrishnamoorthi Aiyat v. Krisknamoorthi Aiyar
Excerpt:
- - with a view to defeat his reversionary right and to spite him as well as to fraudulently secure a substantial portion of the gollaprolu estate for the benefit of the 1st defendant's brothers and her nephews and to enable them also to acquire the voratla estate, the 1st defendant, her brother seetharamaswami garu and her nephews conspired with the 2nd defendant and his relations who had all been bitterly hostile to the plaintiff ever since the succession suit, o. , held that several of the objections of the plaintiff were futile, but that his objection that the 1st defendant was actuated by a desire to get her husband's property under her control so that she may deal with it as she pleased was valid and that though the 1st defendant may well be credited with an intention to benefit.....kumaraswami sastri, j.1. this appeal arises out of a suit filed by the rajah of pittapur who claims to be the next reversioner to the gollaprolu estate for a declaration that the adoption of the 2nd defendant by the 1st defendant is invalid and not binding on the plaintiff and that it does not affect his rights either as reversioner under hindu law or as the zamindar of pittapuram entitled to a vested reversion in the gollaprolu estate on the death of the 1st defendant. the 1st defendant is the widow of venkat rao, the last male holder of the zamindari who died issueless on the 4th of november 1871 and the 2nd defendant is the son adopted by the 1st defendant on the 15th of february, 1914.2. the gollaprolu estate at one time formed part of the pittapuram zamindari and was granted by.....
Judgment:

Kumaraswami Sastri, J.

1. This appeal arises out of a suit filed by the Rajah of Pittapur who claims to be the next reversioner to the Gollaprolu Estate for a declaration that the adoption of the 2nd defendant by the 1st defendant is invalid and not binding on the plaintiff and that it does not affect his rights either as reversioner under Hindu Law or as the Zamindar of Pittapuram entitled to a vested reversion in the Gollaprolu Estate on the death of the 1st defendant. The 1st defendant is the widow of Venkat Rao, the last male holder of the Zamindari who died issueless on the 4th of November 1871 and the 2nd defendant is the son adopted by the 1st defendant on the 15th of February, 1914.

2. The Gollaprolu Estate at one time formed part of the Pittapuram Zamindari and was granted by Gangadhara Rama Rao, the then Zamindar, to his brother Venkat Rao, by a grant filed in this case as Ex. O, dated the 8th of December, 1869. Venkat Rao died issueless on the 4th of November 1871 leaving two widows - the 1st defendant and one Venkayamma who died in 1889 - and the 1st defendant who is the sole surviving widow continued in possession and enjoyment of the estate. She made an adoption of her sister's son on the 18th of August 1886 alleging that her husband authorized her to adopt. The plaintiff's father who was then the Zamindar filed O. Section No. 30 of 1886, disputing the adoption on the ground that no authority was given to her by her husband and also on the ground that her husband had no power to authorize an adoption as he had renounced any power to adopt by an agreement entered into between him and the plaintiff on the 8th of December, 1869. The Subordinate Judge decreed for the Rajah and held that she had no authority from her husband. On the question as to the effect of the agreement, he held that such an agreement would not preclude an adoption. An appeal was preferred to the High Court and the judgment of the Subordinate Judge was confirmed on the 22nd of September 1891 (see judgment, Ex. SSSS. 4). The 1st defendant made a second adoption in 1914 and that is the adoption which is now in dispute. The following genealogical table, the correctness of which is admitted, sets out the relationship between the parties.

3. The genealogical table given below shows the relationship of the parties concerned in this litigation and will serve to elucidate some of the questions raised.

(i) Niladri Rao.

|

___________________________|_____________________________________

| | |

(2) Surya Rao, (3) Lakshmi Venkayamma. (4) Venkat Rao,

died 1850 died Decem-

(no issue). ber, 1869.

| |

_______|______________________________________ |

| | | | |

(5) Niladri Rao, (6) Ganga- (7) Surya (8) Venkata Rao, |

died 1854, no dhara Rama Prakasa Rao, Rao, died |

issue. Rao, born adopted to 4-11-1871, |

1844, died Bobbili. no issue, |

1890. widow 1st |

| Defendant |

| (another widow |

_______________|_____ Venkayamma |

| | |

Adopted (12) Plaintiff, Rao, who died). |

(11) Ramakrishna, born 1885, _______________________________|_

1873, | | |

died April, 1914. | (9) Surya Rao (10) Dharma Rao,

several minor died 1887, no died in 1881,

| children. issue, widow no issue.

| Chellayamma.

|

____|_______________________________________________________________

| | | | |

(13) Ganga- (14) Rajagopal. (15) Rajaman (16) Sri Krishna, (17) Murale

dhara Rama nar, adopted, 2nd Defendant, Krishna

Rao. adopted by (minor).

1st Defendant.

4. On the death of the second widow of Venkat Rao, the late Rajah of Pittapur filed O.S. No. 12 of 1889 to recover one-half of the Gollaprolu estate on the ground that the estate reverts to him in default of the grantee having no male issue. The suit was dismissed on the 28th of September 1891. Ex. TTTT-1 is the judgment.

5. The Rajah of Pittapur who was himself issueless adopted Ramakrishna the natural father of the 2nd defendant in this suit on the 28th of September 1873. Ex. T is the document evidencing the adoption. There was bitter ill-feeling between the late Rajah and his adopted son Ramakrishna for some years before the Raja's death in July 1890. On the 5th of October 1885 the plaintiff in this suit was born. Ramakrishna was disputing the plaintiff's legitimacy and on the death of his adoptive father, Gangadhara, he filed O.S. No. 6 of 1891 to recover the Pittapur estate. His case was that the Ranee never gave birth to the Plaintiff, that he was a child who was introduced into the palace and that the adoptive father owing to bitter enmity with him, got this child introduced into the Zenana and proclaimed it to be his son by Mangayamma, the Ranee. It is also alleged that the Rajah owing to physical infirmities was impotent. The defence to that suit was that the present plaintiff was the legitimate son of the Rajah and that he was entitled to succeed to the Zamindairi by virture of a will executed by the late Rajah. After a protracted enquiry during the course of which several doctors and experts were examined as also several persons connected with the palace, Mr. Mackenzie, the District Judge, held that the present plaintiff was not the son of the Rajah of Pittapur but a child introduced into the palace and that the will would not pass any title as he was not a persona designata but was only given the property in the capacity of an Aurasa son which he was not. An appeal was filed to the High Court and in November 1896 the High Court reversed the decree of the District Judge on the ground that the plaintiff was a persona designata under the will and took the estate whether he was a son or not. The High Court in this view held it was unnecessary to go into the question as to the legitimacy of the plaintiff. An appeal was filed to the Privy Council and their Lordships of the Privy Council in February 1899 upheld the judgment of the High Court as regards the will and considered it unnecessary to go into the question of legitimacy. The present plaintiff attained age in 1906 and assumed management of the estate from the Court of Wards.

5. It will thus be seen that so far as the present plaintiff is concerned the question as to his legitimacy was left open by the High Court and their Lordships of the Privy Council and there was the decision of the District Judge against him on that point.

6. It is not disputed that at the date of the adoption of the 2nd defendant by the 1st defendant, the next presumptive reversioners were Ramakrishna, the adopted son of the late Rajah and the plaintiff who is said to be his Aurasa son. As the 1st defendant's authority to adopt was negatived in the litigation of 1886, it was necessary for her to get the consent of the plaintiff and Ramakrishna who were the next presumptive reversionary heirs. She applied for the consent of Ramakrishna by Ex. XV, dated the 27th of January 1914 and obtained his permission by the reply Exhibit XV(a), dated the 30th day of January 1914. She applied for the plaintiff's consent by the letter Ex. EE-9, dated the 2nd day of February 1914, but the plaintiff refused to give his consent by his letter Ex. EE-11, dated the 11th of February 1914. On the 15th of February 1914 the 1st defendant adopted the 2nd defendant.

7. The plaintiff filed the suit on the 17th of August 1915 for a declaration that the adoption of the 2nd defendant was invalid and for further reliefs.

8. Paragraph 7 of the plaint runs as follows:

7. (1) The 1st defendant frequently requested the plaintiff to render her brothers and her nephews substantial pecuniary assistance to enable them to acquire the 'Voratla estate.'

(2) Her brother Chelikani Seetharamaswami Garu also made a similar request more than once through the plaintiff's officers. As the request of the 1st defendant and the said Seetharasaswami Garu was not complied with, they were much displeased with the plaintiff. With a view to defeat his reversionary right and to spite him as well as to fraudulently secure a substantial portion of the Gollaprolu estate for the benefit of the 1st defendant's brothers and her nephews and to enable them also to acquire the Voratla estate, the 1st defendant, her brother Seetharamaswami Garu and her nephews conspired with the 2nd defendant and his relations who had all been bitterly hostile to the plaintiff ever since the succession suit, O.S. No. 6 of 1891 on the file of the District Court, Godavari, and arranged to take the 2nd defendant 'in adoption on condition that (a) the 2nd defendant should settle one-half of the Gollaprolu estate absolutely with powers of alienation upon the 1st defendant so as to enable her to pass the property to her brothers and her nephews; (b) that in addition he should give her a monthly allowance of Rs. 500 during her life charged upon the other half; (c) that a cash loan of 21/2 lakhs of rupees should be secured from the Rajah of Venkatagiri at a low rate of interest to the 1st defendant's brothers to enable them to acquire the Voratla estate involved in litigation with the Zamindarini of Tuni; and (d) that the (2nd defendant) should marry the daughter of the 1st defendant's brother Seetharamaswami Garu.

9. Paragraph 8 of the plaint runs as follows:

After having entered into such conspiracy and having agreed to the aforesaid agreement with, the 2nd defendant and his relations, without consulting the plaintiff as the head of the family and without going to him (plaintiff) or properly applying to him for his consent, the 1st defendant sent a registered letter, dated 2nd February 1914, informing him that she had resolved to adopt the 2nd defendant and asking him to consent to it. The plaintiff sent his reply on the 11th February, giving his reasons against the adoption. The 1st defendant without any further communication to the plaintiff adopted the 2nd defendant on the 15th February 1914 and sent a registered letter to the plaintiff on the 16th February 1914 containing false and frivolous allegations inconsistent with her previous conduct and admissions and recognition of the plaintiff's status throughout.' In paragraph 9, he states that in pursuance of the aforesaid arrangements two deeds were executed. In paragraph 10 he gives the following reasons which according to him invalidate the adoption. They are as follows:

(1) The 1st defendant had no authority from her husband or the plaintiff who was the head of the family to adopt the 2nd defendant;

(2) that the agreement entered into by her husband with the plaintiff's father precludes the 1st defendant from making an adoption, such agreement amounting to an implied prohibition by her husband against her adopting a son;

(3) that the 2nd defendant's father was suffering from paralysis and was physically incapable of either giving his consent or of taking any part in the ceremonies which are necessary for the adoption;

(4) the fact that the 2nd defendant's father who was in bitter terms of enmity with the plaintiff consented to give his own son in adopion would render his consent invalid;

(5) that the adoption was made by the 1st defendant 40 years after her husband's death under the influence of her brothers and nephews and from corrupt and improper motives to defeat the reversionary rights of the plaintiff and in pursuance of a conspiracy to secure the estate and other benefits for her brother's family; and that the 1st defendant's conduct showed that she had determined to adopt and did not approach the plaintiff bona fide for his consent; and

(6) that the grant of 1869 of the Gollaprolu estate by his father to the 1st defendant's husband was only a maintenance grant and was not intended to enure for the benefit of an adopted son or alienee.

10. The defendants in their written statement denied that the plaintiff is the son of the late Rajah or of his wife Mangayamma and state that he is not a reversioner entitled to sue. They state that the adoption was made bona fide and for legitimate reasons and is not the result of a conspiracy or ill-feeling as alleged in the plaint; that the deeds of settlement and maintenance executed by the 2nd defendant to the 1st defendant and referred to in the plaint are bona fide arrangements between them and are valid in law, that the refusal of the plaintiff to give his consent was purely personal and not bona fide and that the refusal was due to the desire of the Rajah to get the Gollaprolu estate to himself and to make the 1st defendant to adopt his own son. It is alleged that consent was obtained from the other sapindas also referred to in paragraph 11 of the written statement. The defendants deny that Ramakrishna was not in a fit state to give his consent or to take part in the ceremonies. They state that the adoption is valid and proper. They deny the allegation in the plaint as to the plaintiff's title to the Gollaprolu estate as a vested reversion by virtue of the grant. They also deny the prohibition, express or implied, against adoption alleged in the plaint.

11. The main questions in this appeal are (1) whether the plaintiff is the aurasa son of the late Raja and reversioner who would be entitled to succeed to the estate on the death of the 1st defendant, and (2) whether the adopion is invalid for all or any of the reasons given by the plaintiff in the plaint.

12. The Subordinate Judge in whose Court the case was instituted and who tried it and examined several witnesses was appointed as District Judge towards the close of the proceedings and the suit was formally transferred to him as District Judge. He decided that the plaintiff was the legitimate son, that Ramakrishna was not precluded from illness from consenting to the adoption or taking part in the ceremonies and that the adoption could not be disputed on that ground but that the plaintiff was entitled to withhold his consent as the adoption was made by the 1st defendant not bona fide but with a view to secure a personal advantage to herself. He decreed the plaintiff's suit.

13. On the issue of the legitimacy of the plaintiff, the defendants applied to put in the evidence of several witnesses in the former litigation (O.S. No. 6 of 1891) who were either dead or who could not be found. They relied on Section 33 of the Evidence Act. The Subordinate Judge held that such evidence is inadmissible as the suit was not between the same parties, the 2nd defendant in this suit not claiming through Ramakrishna although he was his natural son. On appeal Krishnan and Venkatasubba Rao, JJ., agreed with the Subordinate Judge in holding that the evidence sought to be let in was not admissible and on the evidence on record held that the plaintiff was the aurasa son of the late Raja. As regards Ramakrishna, they held that he was capable of giving his consent and that the adoption could not be impeached on the ground of Ramakrishna's ill-health or his incapacity to take part in the ceremonies. Krishnan, J., held that several of the objections of the plaintiff were futile, but that his objection that the 1st defendant was actuated by a desire to get her husband's property under her control so that she may deal with it as she pleased was valid and that though the 1st defendant may well be credited with an intention to benefit her husband's soul, her main object to get her husband's property under her control so that she may deal with it as she pleased and the widow's motive in this particular being corrupt, the plaintiff withheld his consent for adequate reasons. He was for dismissing the appeal. Venkatasubba Rao, J., as regards the adoption, was of opinion that the widow in making the adoption was not influenced by any corrupt or improper motives, that the arrangement entered into by her was a bona fide arrangement, that the objections raised by the plaintiff were purely personal prompted by a desire to get the estate for himself and were not bona fide and that the adoption was good. He was for reversing the judgment of the Subordinate Judge and upholding the adoption. Owing to this difference of opinion, the judgment of the Subordinate Judge was confirmed and hence this Letters Patent Appeal.

13. As regards the legitimacy of the plaintiff, Mr. Grant for the appellant contended that under Section 33 of the Evidence Act he was entitled to put in the evidence of witnesses who were examined in the previous suit but who were now either dead or could not be called in this litigation. He frankly admitted that if such evidence was ruled out, he could not in this appeal say that the evidence on record is sufficient to support the contention that the plaintiff is not the legitimate son of the late Raja. I am of opinion that the depositions which are sought to be put in are inadmissible, as the 2nd defendant in this suit is not the legal representative of the plaintiff in O.S. No. 6 of 1891. He is no doubt the natural son of the plaintiff in that suit, and if he were not validly adopted, he would be the legal representative, but in this suit he claims not as the son of his natural father but as the adopted son of Venkata Rao entitled to the Gollaprolu estate.

14. In seeing whether a person is the legal representative of another or not for the purpose of rendering evidence admissible under Section 33, regard must be had to the state of affairs when the evidence is sought to be admitted. The fact that the 2nd defendant would have been the legal representative if there was no adoption would not make him legal representative after the adoption for the purpose of the admissibility of evidence. As both the learned judges in appeal agree on this question and have gone into the matter fully, I do not think it necessary to go over the same ground again.

15. As regards the validity of the adoption, the main questions for determination are whether the adoption was not a bona fide act on the part of the widow but was merely a device by her to get possession absolutely of half of her husband's estate and (2) whether the plaintiff was justified in refusing his consent to the adoption. The evidence was gone into in great detail on both sides and giving it my best consideration I have come to the conclusion that the judgment of Venkatasubba Rao, J., is right and that the adoption was not invalid.

16. After the adoption made by the 1st defendant in 1886 was held to be invalid, she did not give up the idea of making an adoption. It is not disputed that she consulted Mr. Srinivasa Aiyangar, a leading vakil of this Court, as early as 1901 about an adoption.

17. The evidence in this case shows that the 1st defedant who was about 67 or 68 years at the date of the adoption became ill two years before the adoption and wanted to adopt a boy.

18. So far as the boy adopted is concerned, it is nowhere suggested that owing to his health, conduct or character he was not a suitable boy to be adopted to the Golloprolu branch of the family. The Hindu Law givers enjoin that the boy to be adopted should be 'Adoora Bandhavaha' meaning a sapinda as near as possible. The 2nd defendant was a near sapinda and having regard to the qualifications recommended in the Hindu Shastras as to adoption he would in every way be a fit and suitable person for being adopted. It is said that he was the son of a person who was a bitter enemy of the present plaintiff but it is not said that the 2nd defendant personally did anything which was improper.

19. In 1912 the plaintiff in this case had only one son. In 1913 another son was born to him. The plaintiff's evidence is that he wanted to give that boy in adoption to Chellayamma, a relation of his, and that he named the boy after Chellayamma's husband. So that none of his sons were available. Ramakrishna the plaintiff's adopted brother had four sons. The 1st defendant opened negotiations with him for the adoption of one of his sons. About a year before the adoption actually took place, she approached Ramakrishna, but Ramakrishna was unwilling to give his boy in adoption as the 1st defendant was friendly with Pittapur and he thought he would be sending his son to the enemy's camp by allowing the adoption. Negotiations continued and were carried on through Pakam Kuppiah, defendant's 1st witness, C. Seetharamayya (1st defendant's brother) defendant's 27th witness and her nephew, C. Venkayya, defendant's 22nd witness. Mr. P.V. Krishnaswami Chetti one of the leading vakils of this Court who had retired from active practice but who was the legal adviser to the Maharaja of Venkatagiri, the natural brother of Ramakrishna, was approached about two months before the actual adoption with a view to get Ramakrishna's consent by getting the Maharaja of Venkatagiri to use such influence as he had to get over any prejudice which Ramakrishna had to giving one of his sons in adoption. Mr. Krishnaswami Chetti acted in the matter and on the advice of Mr. Krishnaswami Chetti and the Maharaja of Venkatagiri, Ramakrishna agreed to give the 2nd defendant in adoption. Having secured what in her opinion was a suitable boy, she had to get the consent of the nearest sapindas as it has been laid down by their Lordships of the Privy Council that the consent of the sapindas required by a widow is that of the next presumptive reversioner and not the consent of the remoter reversioners. As the plaintiff refused to give his consent but as the only other nearer sapinda had agreed to give his boy, the 1st defendant came to Madras to make the adoption.

20. After Ramakrishna had given his consent, questions arose as to the payment of the 1st defendant's debts which were then said to be about rupees 21/2 lakhs. Ramakrishna was approached on the question as to the 2nd defendant who was to be adopted paying those debts, and Ramakrishna referred the matter to the 2nd defendant who was then a major and whose consent would be necessary. The 2nd defendant did not want to be bothered with the debts and suggested that he would give half the estate to the 1st defendant, she paying all the debts and the 2nd defendant not being liable. The question also arose as to the maintenance of the 1st defendant as the half given would go to pay debts and the 2nd defendant on the advice of the Maharaja of Venkatagiri agreed to pay her Rs. 500 a month and in pursuance of this agreement the 2nd defendant executed two deeds (Exs. XVII and XVII (a)) giving one-half of the estate to his adoptive mother and Rs. 500 a month for maintenance. These deeds were executed the day after the adoption was actually made.

21. The evidence on this part of the case on the defendants' side is that of the 1st defendant who was examined as defendants' 8th witness, of Pakam Kuppiah, defendants' 1st witness, of Mr. P.V. Krishnaswami Chetti, defendants' 9th witness, of Venkayya, defendants' 22nd witness, of C. Seetharamayya, defendants' 27th witness and of the 2nd defendant who was examined as defendants' 49th witness. The evidence of these witnesses has been referred to in detail by Venkatasubba Rao, J., and I need not set it out in detail again. As against this evidence, there is the evidence of Narasinga Rao who was examined as plaintiff's 113th witness. The Subordinate Judge has disbelieved him on several material points. He has clearly perjured himself as regards Exs. XVI and XVII. Krishnan, J., did not place much reliance on him. I agree with Venkatasubba Rao, J., in thinking that no reliance can be placed on the evidence of this witness.

22. As regards the motive of the widow in making the adoption, Krishnan, J., was disposed to accept the statement of defendants' 1st witness that the idea of adoption was first mooted about a year before the actual adoption took place. He also observes 'the 1st defendant may well be credited with an intention to benefit her deceased husband's soul as that is always a consideration for an adoption but her main object was undoubtedly to get her husband's property or as much of it as she could get into her own hands absolutely.' In another part of the judgment the learned Judge says : 'Whatever weight one may attach to the religious benefits flowing from an adoption, one cannot ignore the secular rights flowing from it.' According to the learned Judge, the widow was not acting solely with a desire to benefit herself personally and with a corrupt motive but with mixed motives (1) desire to adopt, and (2) desire to benefit herself personally.

23. In dealing with this part of the case I think it is necessary to have regard to the fact that she was an old woman who was ill and who was apprehensive that she would not live long. There is no cross-examination of the 1st defendant or her witnesses who say she was ill though it is now suggested that she was quite well at the time. In the absence of any cross-examination as to this point I see no reason to doubt the fact of her illness. She made the first adoption in 1880 alleging an authority from her husband which the Court in the suit by the late Raja of Pittapur found to be false. It is not suggested that in the first adoption she made when she was much younger she reserved any personal benefit to herself. It is no doubt true that she adopted her sister's son but it should be borne in mind that at that time the then Raja of Pittapur was himself issueless and he had to adopt Ramakrishna. Ramakrishna had at that time no sons whom he could give in adoption. It is not suggested that there were any boys among the sapindas who could be adopted. If she was bent on getting absolutely any portion of her husband's estate, she as a wordly woman would certainly have provided for it when she ,was adopting her sister's son who would raise no objection as, there was no guarantee that though he was her sister's son he would treat her with affection after the adoption was completed and the boy grew up. In 1901 she consulted Mr. S. Srinivasa Aiyangar, a leading vakil who now appears for the plaintiff in this suit, and it is not suggested that when she consulted him as to adoption she bargained for any terms for herself. It is also to be noted that the plaintiff in this suit who was born in 1885 attained age in 1916 when he got possession of the estate from the Court of Wards. The only other sapinda whose consent was necessary was Ramakrishna. If she wanted to make an adoption and secure a personal benefit for herself, there was nothing to prevent her from making the adoption with the consent of Ramakrishna who was the sole reversioner whose consent was necessary till the plaintiff attained majority in 1906.

24. Although it was stated that Ramakrishna got a personal bribe and consented to the adoption, this point was not pressed before us and no objection is urged to the adoption on this ground. So far as the evidence goes, far from seeking any personal advantage to himself, Ramakrishna was unwiliing to give his son in adoption. In addition to the evidence on the defendants' side, there is the evidence of Narasinga Rao, plaintiff's 113th witness who though entirely hostile to the defendants, deposes as follows in cross-examination : 'About the adoption Pakam Kuppiah was coming and telling me before that. I remember only one occasion when he spoke to me about the adoption. It was in January, a few days before this conversation. He told me that he approached Mr. Ramakrislmayya about the adoption and that Ramakrishnayya was not willing to give the boy in adoption and that he had asked Kuppiah to pack away.'

25. A great deal of the argument turned on the adopted son giving one-half of the estate to the adoptive mother and on his also agreeing to pay Rs. 500 a month for maintenance. As I said before, the evidence on this part of the case is that after the adoption had been settled, reference was made to the debts of the 1st defendant the adoptive mother and the boy was asked to pay those debts, and that the suggestion of the adopted son was that he should not be saddled with the debts but that he would give half the estate to her so that she could pay her debts out of the estate.

26. On this part of the case the contention of the plaintiff as set out in the plaint and in the evidence of the witnesses was that the 1st defendant's brother C. Seetharamayya was engaged in a litigation as regards the Voratla estate, that he bought the equity of redemption, the mortgagee being the Rani of Tuni, that a suit was pending in the Vizagapatam Court and the 1st defendant's brother wanted Rs. 21/2 lakhs to settle the claim and that it was to provide for this sum to settle that claim the widow wanted Rs. 21/2 lakhs to be paid by the adopted son and got a deed for one-half of the property. It is stated that Rs. 21/2 lakhs was raised by the 1st defendant by executing the mortgage (Ex. XVIII) in favour of the Maharajah of Venkatagiri.

27. The suit about the Voratla estate was O.S. No. 30 of 1910 in the Vizagapatam Sub-Court. It is admitted that there was no settlement in that suit and that the plaintiff in that suit got a decree for about Rs. 7 lakhs. There can be little doubt however that in 1913 the 1st defendant and her brother hoped that the suit would be settled for Rs. 21/2 lakhs, and applied to the plaintiff for help which he was unwilling to grant. Letters (Ex. EE to EE-8) were filed to show that an application was made to the plaintiff for help in respect of the Voratla claim. It is however conceded before us that neither Rs. 21/2 lakhs nor any other sum was paid in respect of the Voratla litigation by the 1st defendant or her brother and that no portion of the money which the 1st defendant raised by mortgaging her half-share to the Maharajah of Venkatagiri under Exhibit XVIII went to meet any claim in connection with the Voratla litigation.

28. The case for the defendants is that the 1st defendant had debts to pay amounting to about Rs. 21/2 lakhs, that when she was making the adoption she naturally was concerned as regards these debts and asked the adopted son to pay off those debts and that the adopted boy suggested that instead of his paying the debts, the adoptive mother could pay them out of the half-share of the estate which he would give her.

29. So far as I can see, only two cases were put forward at the trial. The plaintiff's case was that this arrangement as to Rs. 21/2 lakhs had nothing to do with the debts of the 1st defendant but was merely a device by the 1st defendant to get half the estate, on which she could raise money to help her brother in the Voratla litigation and that she actually did so by getting a loan from the Maharaja of Venkatagiri of Rs. 21/2 lakhs. The case for the defendants is that it was to pay her debts that she raised a loan from the Maharaja of Venkatagiri and it had nothing to do with the Voratla litigation and that out of the loan so raised she discharged her debts.

30. The case for the plaintiff as to the Voratla motive has entirely failed. It was not pressed before us in this appeal, but the plaintiff wants to turn round and say that the 1st defendant has not proved that she had debts of her own to the extent of Rs. 21/2 lakhs and that they were her brother's debts which she wanted to pay. It is argued that the 1st defendant has not proved each item of the debt which she is alleged to have paid and so these were not her debts but her brother's. It is complained that she has not produced vouchers or accounts and it was sought to treat this case as if the 1st defendant was called upon by the pleadings or evidence to prove each item that went to make up the debt of Rs. 21/2 lakhs which she says she paid. I do not think that the plaintiff who fails to prove the specific case set up by him is entitled to say that the 1st defenadnt should prove every item.

31. As regards the debts said to have been discharged, there can be little doubt that the whole of Rs. 21/2 lakhs went to discharge the debts. Exhibit XVIII is a mortgage, dated the 25th of July 1914, executed by the 1st Defendant and her brother and her brother's sons in favour of the Maharajah of Venkatagiri. It begins by stating that the amount of Rs. 2,50,000 was borrowed for the purpose of clearing the debts borrowed by the executants. Venkayya, one of the executants of the document, states that this loan was arranged 2 or 3 months prior to the execution of the mortgage bond, i.e., about the month of May, the adoption being in February. He says that the loan was taken for the purpose of liquidating the debts of the 1st defendant and that her debts were discharged out of the money got by the mortgage. He denies that any money was needed at that time for the Voratla litigation. In cross-examination he states that he was present when some of the 1st defendant's debts were discharged and that the debts of the 1st defendant on khathas and promissory notes were partly in her name and partly in the names of himself and his brothers and 1st defendant's brother. He states that the debts of his own family would be about Rs. 60,000 or Rs. 70,000, that there were outstandings also to that extent and that at the time of 2nd defendant's adoption their own debts would have been Rs. 40,000 or Rs. 50,000. He says that he was present when debts amounting to Rs. 25,000 or Rs. 30,000 of the 1st defendant were discharged. Kuppiah, defendant's 1st witness who negotiated the loan from the Maharaja of Venkatagiri, says that the talk about the Maharaja of Venkatagiri lending money arose more than 3 months after the adoption, that the 1st defendant wanted a loan to discharge her debts, that the Maharaja of Venkatagiri when approached agreed to give a loan provided there was adequate' security, and that the Maharaja, when informed that one-half of the Gollaprolu estate which the 1st defendant got would be given as security, thought that the security was insufficient and said he would give the loan only if her brother and nephews would also execute the mortgage deed and include their properties also. The fact that the debts to be discharged are said to be the debts of the executants does not show that the debts are not the debts of the 1st defendant. It is usual, when more than one person executed a document alleging that money was borrowed to pay debts, for the lender to get a general statement that the debts were the debts of the executants and not to give room for future contention by stating what the debts of each of the executants were. He says that as regards the debts due by the 1st defendant there were registered mortgages for Rs. 10,000, promissory notes for Rs. 40,000, pledges of jewels and money received on chits, and that after discharging those debts he took back those vouchers and gave them to1 the Maharaja of Venkatagiri. He says that the 1st defendant told him that she contracted debts for litigation and other expenses, that no portion of the money lent by the Maharaja was utilized for the Voratla litigation and that after discharging the 1st defendant's debts there was a balance of only Rs. 10,000 which he handed to the 1st defendant. He swears that no portion of the money received from the Maharaja of Venkatagiri went towards the liquidation of any portion of the debts of the 1st defendant's brother's family.

32. It is usual for a person lending money on mortgage for discharging debts to get the cancelled documents and 'vouchers and keep them as evidence should any disputes arise as to consideration and it is quite probable that these vouchers were given to the Maharaja of Venkatagiri. It does not appear that the Raja or his Dewan was subpoenaed to produce the vouchers. All that appears from the evidence of Kalyana Rao, defendnts' 28th witness, is that the Maharaja of Venkatagiri was subpoenaed by defendants to produce some documents and that he handed over to Kuppiah the documents mentioned in the summons. It appears that the summons which the witness speaks of was the subpoena taken out by the defendants and it does not appear that the plaintiff took out any subpoena. The witness states that defendants' 1st witness did not hand over to the Maharaja of Venkatagiri the documents evidencing the debts discharged out of the consideration for the mortgage but admits that he did not make a search of all the records and that he only searched a box containing letters from the Raja of Pittapur. The 1st defendant in her deposition states that she had at the time of the adoption debts to the extent of Rs. 21/2 lakhs and that arrangements were then made to discharge those debts. This is what she says:

I said to the 2nd defendant that he might take the whole estate and discharge my debts. He said he would take half and that I might take the other half of the estate and discharge my debts. The said settlement deed thus gave me half the estate for discharging my debts.... I arranged to discharge my debts and for that purpose I took a loan from the Maharaja of Venkatagiri. I borrowed Rs. 21/2 lakhs from him and executed a mortgage deed to him.

33. She says that the debts referred to were her own debts and not her brothers' debts and that as the brothers executed the document and mortgaged their properties also, the Maharaja wanted that the debts should be described as the debts of all of them. She says that some of her debts were on pledge of jewels and that Kuppiah, defendants' 1st witness, and Prakasam brought money from Venkatagiri and discharged the debts. She says that all her debts were paid off. The 2nd defendant who is the adopted son states that the talk about giving half the estate to the 1st defendant was about a week or 10 days before the deeds were executed. This is what he says:

P. Kuppiah (D.W. 1) spoke to me about them. He told me that the 1st defendant sent word to my natural father that she wished to adopt me on condition of my taking the whole estate and discharging her debts myself and that my natural father sent word through him to as certain if I was willing to that course and if not what my opinion on the matter was. I replied that it would be better if I were given half the estate free of debts, the 1st defendant herself taking the other half with the debts and that I would abide by the opinion of the elders on that matter. D.W. 1 went and consulted my natural father and came back to me and told me that my natural father agreed to my proposal.

34. He says that he did not know if there was a talk before the adoption about a loan from the Raja of Venkatagiri and that he heard of it only 3 or 4 months after the adoption. The evidence was given by him in Telugu and when it was interpreted to him he wanted to correct himself, by saying that defendants' 1st witness, when he spoke to him about taking the whole estate with the debts, did not say anything about the adoption. The Judge notes that the witness stated what was recorded in the deposition. The evidence was all taken in one day and it is argued for the appellant that in view of that fact his correction could not be an afterthought, that as the deposition was given in Telugu (the Judge being a Tamil gentleman) too much importance should not be attached to the word 'condition' in his deposition and that reading the evidence as a whole it cannot be said that the adoption was conditional on his giving half the estate. C. Seetharamayya (defendants' 27th witness) who is 1st defendant's brother states that after the adoption was settled, the 1st defendant asked the 2nd defendant to take the estate and discharge her debts and that the 2nd defendant replied he would not discharge the debts but that he would give her half the estate with absolute rights and she might discharge the debts herself. He says that the loan under Ex. XVIII was borrowed to discharge the 1st defendant's debts, that the debts were debts partly borrowed in her name and partly in his name when the creditors hesitated to give money on the ground that the 1st defendant was a widow, that all these debts were borrowed for the 1st defendant and that they would be entered in the chittas. He was asked in cross-examination about some of the debts discharged and he says that most of the documents were executed by him or his elder brother or Venkayya whoever happened to be present and some jointly by all of them, that they were executed far the 1st defendant's purposes and that she would pay moneys to them from borrowed moneys. This is what he says:

They were executed for her purpose and she would pay us not only from these borrowed moneys and also other funds of hers. She would give us as much out of the borrowed moneys as she liked. As the 1st defendant was a female, the people were not willing to lend her money and the creditors were not satisfied that the moneys lent by them were for purposes binding on her estate. The 1st defendant also used to borrow sometimes in her own name.

35. He says that his joint family has got properties yielding about Rs. 40,000 and that they have still debts to pay.

36. As regards the income of the Gollaprolu estate, the net income is said to be Rs. 40,000 a year, which will be about Rs. 3,400 a month. The fact seems to be that the 1st defendant who had no nearer relations of her husband treated her brothers and her sisters and their children with great affection. She was spending large sums upon them and there can be little doubt that she was spending the income of the estate on herself and her brothers and sisters and their children. There can also be little doubt on the evidence that the debts which she had at the date of the adoption would not bind the reversioners. They were purely her personal debts. So long as she was in possession of the estate she could use the income as she pleased, but she could not mortgage or encumber the estate so as to be valid beyond her lifetime and it is only natural that the creditors hesitated to lend large sums of money to her as they would lose the money if she died or made any adoption and she had to borrow through her brothers and nephews who according to the evidence had property yielding about Rs. 40,000 a year. As her brothers and nephews were well off, there was no difficulty for her in getting loans through them. It appears from the evidence that out of the debt of Rs. 21/2 lakhs which had to be paid, Rs. 50,000 were debts in her own name for which she could be sued and the rest was borrowed by her brothers or nephews at her request. If she was minded to defraud her creditors, she could have made an adoption and left the creditors unpaid. She however did not want to adopt this course but. was anxious that the debts incurred by her or incurred at her request should be paid. At the time of the adoption she was ill and according to Hindu notions the sin arising from a person dying with his debts unpaid applies equally to women though in the case of a man leaving sons the law has made the pious obligation to save the father from the consequences of the sin a legal obligation. I do not think a widow who makes an adoption and stipulates that the adopted son should pay her debts is doing anything corrupt or immoral. On the contrary I should think that she is doing an honourable thing. It has now been settled by their Lordships of the Privy Council in Krishnamoorthi Aiyar v. Krishnamoorthi Aiyar , that an adoption made by a widow on condition that she should enjoy the income of the estate during her lifetime would in the Madras Presidency be valid even though the adopted boy was a minor and his father entered into the arrangement. Though she will be securing a personal benefit and though the adopted son may for several years be deprived of the estate, the adoption will be valid. If after the adopted son comes of age he commutes the interest reserved by the widow into an absolue share of a portion of the estate, it cannot be said that the transaction will be void. If the adopted son is at the time of adoption a major capable of contracting as he was in the present case, I can find nothing illegal in the widow-requiring the adopted son to pay her debts. If the adopted son instead of undertaking the burden thinks that it is in his interests to get an unburdened share of the estate and makes the widow to pay her debts out of any share allotted to her, I find it difficult to see how the adoption would be invalid as being made from a corrupt motive. The case may be different if the widow had no debts to pay or if the proportion of the estate granted to her was so disproportionate to the debts that the Court can on the evidence treat it as a device pure and simple by the widow under the guise of an adoption to get a large share of her husband's estate to herself. In the present case the net income of the estate is said to be Rs. 40,000 a year and half the income would be Rs. 20,000 a year.

37. The Maharaja of Venkatagiri who lent Rs. 21/2 lakhs thought that the estate was not sufficient security although at the time of the mortgage the widow had absolute title to half the estate and it cannot be said that if there were debts to pay amounting to Rs. 21/2 lakhs, the arrangement was one which the Court would hold to be mere device to get an absolute property. As a matter of fact, the half which she got from the adopted son was in 3 or 4 months after the adoption mortgaged to the Maharaja of Venkatagiri and the debts were paid off. She had no other means to pay the debts so that any possible advantage which she might get would be any surplus remaining after the debts were paid. Meantime interest was payable on the mortgage for Rs. 21/2 lakhs. Having regard to all the facts in this case I am of opinion that the adoption was made without any corrupt motive by the widow. While on the one hand she wanted to adopt in order to advance her husband's and her spiritual welfare she did not want to evade payment of the debts which she considered legally or at least morally binding on her. It is no doubt true that these debts would not bind the reversioner if he chose to contest them. But at the same time it cannot be said that her stipulating for the discharge of the debts which she owed and. which she could pay out of the income of the estate even after adoption by making it a condition that she should remain in possession of the estate for her lifetime makes the adoption invalid as being made from a corrupt motive.

38. It has been argued for the respondent that it was only when she found that the plaintiff would not give her brothers Rs. 21/2 lakhs for the purpose of the Voratla estate litigation that she conceived the idea of adoption as a means of raising money to help her brothers and that the motive was therefore corrupt as she wanted under the guise of an adoption to get a personal gain to her brothers. I do not think the evidence supports this conclusion.

39. Exhibits EE series and the evidence of the plaintiff and his Dewan show when the request for money was made. It appeal's from the: date that the 1st defendant resolved to adopt the 2nd defendant before, the refusal of the plaintiff to accede to her request for money to help her brothers. The letters to the plaintiff asking for money are Exs. EE, EE-2, EE-5 and EE-8. Ex. EE is not dated, but it is argued that the evidence shows that it must have been in May or June 1913. It says that her brothers were anxious to buy the Voratla estate and requests the plaintiff to give them pecuniary help. Ex. EE-2 states that if he was willing to render the help asked for, her brother would come and explain matters. It concludes by saying that the matter about the Voratla estate has got to be settled at once and requesting for an immediate reply. In Ex. EE-5 she reminds the plaintiff of her request and states that if he does not help her brothers, they would give up the Voratla estate and that they have taken a week's time to settle the matter. Ex. EE-8 is another reminder where she wants a definite reply whether he would help her brothers or not. It appears from Ex. EE-16 that a person called Kondayya was paid on the 3rd January 1914 Rs. 8-2-9 for going from Undoor, the 1st defendant's place to Pittapur, and it is suggested that the letter Ex. EE-8 was the letter which the man took and it is sought to fix the date as January 1914. There is however nothing in Ex. EE-15 or EE-16 to support this. Though the 1st defendant denied that she wrote these letters, I do not think there is sufficient reason for differing from the Subordinate Judge who was of opinion that the letters were written by the 1st defendant especially as it is not denied that she did apply to the plaintiff for help in connection with her brothers purchasing the Voratla estate.

40. Mr. P. Seetharamayya who was Dewan of Pittapur from October 1910 to September 1913 states that about 3 of 4 months before his term as Dewan expired, defendants' 27th witness C. Seetharamayya came to him and asked him to suggest to the plaintiff that the latter may make a gift of Rs. 21/2 lakhs to him as he wanted to clear some heavy debt in connection with an estate of which the Rani of Tuni was the mortgagee. This evidently refers to the Voratla estate litigation. He says that he referred Seetharamayya to the Raja as it was not a matter in which the Dewan had anything to do. The plaintiff states that the 1st defendant personally asked him about the pecuniary help shortly after the birth of his second son in October. The plaintiff sent no reply to these letters and he says that he never refused in so many words to accede to the request of the 1st defendant when she asked him for help personally. I have already referred to the evidence which shows that the 1st defendant entertained the idea of adopting the 2nd defendant about a year before the actual adoption.

41. Mr. Krishnaswami Chetti, defendants' 9th witness, who was one of the leading vakils of this Court and who retired from active practice owing to hardness of hearing but who continued to practise in Chambers states that more than two months before the adoption took place he was consulted by Pakam Kuppiah and C. Seetharamayya on behalf of the 1st defendant as regards adoption. There is absolutely no reason to disbelive the evidence of Mr. Krishnaswami Chetti, who was a well known and highly respected vakil of this Court. So that it is clear that the 1st defendant before she had any reason to expect that the plaintiff would not accede to her request was taking steps to adopt the 2nd defendant.

42. So far as the Voratla estate is concerned, neither Rs. 21/2 lakhs nor any other sum was paid to the Tuni Rani and the letter that I have referred to (Ex. EE-5) shows that a week's time was obtained for settlement and evidently by the beginning of January 1913 the compromise fell through and there was no necessity for the payment of any money to the Tuni Rani. The suit took its own course and ultimately there was a decree for a large sum. No portion of the Rs. 21/2 lakhs raised from the Maharaja of Venkatagiri was paid towards this decree. The contention that the adoption was merely a means to get Rs. 21/2 lakhs to pay the 1st defendant's brothers in order to enable them to purchase the Voratla estate has no foundation.

43. The conclusion I have come to on this part of the case is that the 1st defendant who was an old lady and whose health was failing her from about two years before the adoption wanted to make an adoption, that when she conceived the idea of adoption the only near sapinda boy available was one of the sons of Ramakrishna, that Ramakrishna was not willing to give one of his boys in adoption as she was on friendly terms with the plaintiff, that ultimately at the instance of Kuppiah, Mr. Krishnaswami Chetti and the Maharaja of Venkatagiri, Ramakrishna was persuaded to give one of his boys in adoption, that the 1st defendant's idea in adopting the boy was not to get Rs. 21/2 lakhs for the purpose of helping her brothers in connection with the Voratla litigation, that the unwillingness of the plaintiff to advance Rs. 21/2 lakhs was not the reason why she wanted to make the adoption, that after the adoption was resolved upon and settled and Ramakrishna's consent was got, questions arose as to the debts which she said she owed and that the arrangement whereby the adopted son agreed to give half the estate to the 1st defendant was the result of an offer from the adopted son as a means to enable her to discharge her debts.

44. I do not think the plaintiff has proved that the debts which were actually discharged by the 1st defendant were entirely the personal debts of her brothers. She no doubt obtained an advantage as the debts which she considered she had to pay were discharged; but it is not every personal benefit which the widow obtains that could invalidate the adoption. As I said before, she could contract with the adopted son or his guardian to enjoy the whole estate during her lifetime leaving nothing for the adopted boy till her death. Krishnan, J., was of opinion that her motive for adoption was not purely a desire to get an advantage for herself but that she was actuated by religious motives and also a desire for personal gain. Venkatasubba Rao, J., held that her motive was not corrupt.

45. So far as the adoption is concerned, it is a religious sacrament according to Hindu Law-givers as a marriage. The necessity for the adoption of a son in the case of childless Hindus is insisted upon as an act necessary for their salvation and is looked upon as very meritorious. It is in fact looked upon as so meritorious that in Bombay the authority of the husband is unnecessary as such authority according to the leading commentators may be presumed for so meritorious an act.

46. Secular motives do come into play and influence persons in making adoption. Where an adoption is made by a widow both in fulfilment of her religious duties and also for the purpose of getting a gain for herself, it seems to me the proper thing is to hold that the adoption would be valid while any arrangement for her personal benefit, if not within the limits actually allowed by law, would be void. No case has been cited where in such cases the adoption has been set aside; but the Court always confined itself to declaring the arrangement limiting the adopted son's rights voidable at his instance.

47. In Bhasba Rabidat Singh v. Indar Kunwar (1889) L.R. 16 IndAp 53 : I.L.R. 16 Cal. 556, which was a case from Oudh (Northern India) the adoption was questioned on the ground that the widow agreed with the natural father that she should retain the whole estate during her lifetime. Though such an agreement would be valid in Southern India by virtue of a custom as decided by their Lordships of the Privy Council in the 50 Madras case above referred to, it would not be valid in other parts of India. Their Lordships of the Privy Council were of opinion that this did not render the adoption conditional and did not affect the rights of the adopted son, but they stated that even if it amounted to a condition on which the adoption was made, the condition would be void without invalidating the adoption. It has been argued for the appellant that where it is found that the widow was actuated by consideration of spiritual benefit to her husband in making the adoption, Courts cannot analyse her motives and see the proportion of the spiritual and secular motives. It is also argued that the question of a widow's motive cannot be gone into when she had made an adoption. Reference has been made to Mayne's Hindu Law, 9th edition, Articles 120 to 129 especially Article 128, page 170, and to Ramachandra Bhagavan v. Mulgi Nanabhai I.L.R. (1898) Bom. 558, and Mahableshwar v. Durgabai I.L.R. (1898) Bom. 199. As I find on the evidence that a corrupt motive has not been proved, it is unnecessary to discuss this aspect of the case. Were it necessary, I would incline to the view that the Court cannot set aside an adoption by going into consideration of the motives of the widow making the adoption.

48. I am of opinion that even if it is shown in this case that the 1st defendant wanted to get a personal benefit for herself, the adoption could not be set aside on that ground.

49. The next question is whether the adoption is invalid owing to the plaintiff having refused to give his consent to the adoption. It is now settled by their Lordships of the Privy Council in Veerabasavaraju v. Balasurya Prasada Rao , that the sapindas whose consent is necessary to validate an adoption by a widow are the nearest and not the remote ones. It is therefore unnecessary to refer to the previous decisions which leave it in doubt as to who are the sapindas that should be consulted.

50. At the time of the 2nd defendant's adoption and the negotiations which preceded it, the nearest sapindas were Ramakrishna, the father of the boy arranged to be adopted and the plaintiff, assuming that the plaintiff was the aurasa son of the late Raja of Pittapur. The question as to the plaintiff's legitimacy was at that time undecided. Mr. Mackenzie, the District Judge, after a protracted trial and after considering the evidence of several doctors and expert witnesses had found that the plaintiff was not the son of the Raja of Pittapur. That finding remained unreversed as both the High Court and their Lordships of the Privy Council decided the case on the question of the will and the plaintiff herein being a persona designata. The 1st defendant acting under legal advice did not want to take the risk of deciding for herself whether the plaintiff was or was not the son of the late Raja and she applied to the plaintiff for his consent.

51. Exhibit EE-9 is a letter, dated the 2nd of February 1914. It runs as follows:

I am very anxious to adopt a son for securing a good end to my late husband, performing his ceremonies, etc., and perpetuating the progeny (line). Further, in adopting, I intend adopting Sri Krishnayya, the fourth son of Sri Rajah Rao Vekata Surya Mahipathi Ramakrishna Rao Bahadur, the adopted son of the late Raja of Pittapuram. But under the decree in O.S. No. 30 of 1886 on the file of the Sub-Court, Cocanada, and under the decree in the appeal against it in the High Court, it has been found that I have no authority from my husband to adopt. I therefore write this letter to you earnestly requesting your permission for me to adopt the said boy. Please to consider and reply soon. Please bestow some thought.

52. It is argued for the respondent that the 1st defendant did not really want to consult the plaintiff, and that the terms of the letter were not respectful as it was addressed to him as Zamindar of Pittapuram and not as Raja of Pittapuram. I see little force in this argument as the plaintiff himself when examined said that there was nothing wrong in the letter as it stood. This is what he says : 'I see Ex. EE-9. I now read it. I am not prepared to say whether there was any impropriety or defect in the language or substance of this letter.' To this letter written on the 2nd February the plaintiff sent a reply on the 11th of February (Ex. EE-11). The letter runs as follows:

The letter written by you on 2nd February 1914 reached me on 4th February 1914. I have come to know that you are not adopting with an honest purpose either for the spiritual salvation of your deceased husband or for the perpetuation of his line, but bearing spite against me for my not rendering pecuniary help to your brothers as requested by them and you, and with a view to put me to loss and for the selfish gain of all of you, you have intrigued with Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu who has been my longstanding enemy and arranged to adopt his son.

(2) That you have resolved upon making the adoption with the motive mentioned in paragraph 1 supra and have not applied for my consent with an honest mind will be evident from, the very fact that instead of asking for permission to adopt a suitable boy you wrote to me to say that you wanted to take in adoption the fourth son of Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu and were very desirous of having my consent for the same.

(3) Had you come to me and told me the necessity that has arisen for you to make an adoption and the reasons for adopting that boy, I would have been in a position to discuss with you about it in person and express my opinion to you.

(4) You, your brothers and Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu having joined hands in the manner set forth above in order to put me to loss, you and your brothers having made some arrangements for yourselves, as consideration for your agreeing to adopt his son, and you having given him some consideration for his according consent to you to make an adoption, and having thus decided upon the arrangements, you and your brothers went to Madras and being bent upon adopting that boy, you wrote to me the letter merely for the sake of formality and not with an honest desire to obtain my consent.

(5) In pursuance of the arrangement that was made by your late husband and my father, the late Sri Rajah Rao Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu, you were precluded by your husband from making an adoption.

(6) The consent given by Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu, for his own gain, to your adopting his son is not valid.

(7) Further, I being the aurasa son, Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu, who is an adopted son has no authority to give the consent. It is therefore not possible to give you consent as desired in your letter. Please to consider.

53. To this, the 1st defendant sent Ex. EE-12, dated the 16th February 1914, denying that she was actuated by any corrupt or improper motive and stating that she is not precluded from adopting by reason of any agreement between her husband and the late Raja of Pittapur. She refers to the difficulties she had in persuading Ramakrishna to give his boy in adoption and states that the real reason for the plaintiff's refusal was that she did not agree to his proposal that she should wait until another son was born to him and take that boy in adoption. This letter was written on the day after the adoption.

54. As regards the consent of sapindas, although the authorities hold that the person, who should give the authority is the nearest sapinda who ex-hypothesi would lose the estate if the widow died before him, the sapinda is not entitled to withhold his consent from corrupt or improper motives. What the sapinda has to see is the interest of the family to which adoption is made.

55. The law also has been settled that where there are only two sapindas who have to be consulted and one of them refuses his consent for motives which the Court holds to be improper, the Court will ignore such refusal and hold that the adoption is valid if the consent of the other sapinda has been obtained for the adoption. In the Ramnad case The Collector of Madura v. Muthummalinga Sethupathi (1868) 12 M.I.A. 397 their Lordships of the Privy Council, observe:

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 would be defeated by the adoption. There should be such evidence of the assent of the 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.

56. This assumes that the person whose consent is asked is a person who is himself actuated by correct or proper motives in seeing whether the adoption should be made or not.

57. In Parasara Bhattar v. Rang a Bhattar I.L.R. (1880) Mad. 202, Sir Charles Turner, C.J., and Jnnes, J., were of opinion that the assent of some of the sapindas equally distant from the deceased is sufficient if bona fide given when the assent of others is refused from improper motives or without a fair exercise of discretion. This was a case where there were two sapindas one of whom consented to the adoption and the other refused to give his consent unless his son was adoplW.

58. In Venkata Krishnamma v. Annapurnamma I.L.R. (1900) Mad. 486, it was held that where a sapinda who is consulted and who refuses to give his consent without giving any reasons for it cannot question the adoption made with the consent of the other sapindas. Though this decision will not be authority, after the ruling of the Privy Council in Veerabasavaraju v. Balasurya Prasada Rao for the view that a remoter sapinda could be consulted, is authority for holding that a sapinda whose refusal is not proper can be ignored.

59. In Venkatapathi v. Punnamma 1915 M.W.N. 236, it was held by Wallis, C.J., and Hannay, J., that in giving or refusing his consent a sapinda is not entitled to proceed upon grounds personal to himself but must act with a deliberate consideration for the benefit of the family to which the adoption is to be made and that where a sapinda refuses his consent on the ground that the widow was actuated by a desire to prevent the property from devolving on him and his heirs and that there was no necessity to adopt until he got a son, the refusal was not proper, and could be ignored by the widow. The learned Judges refer with approval to Nugarampalli Kamesam v. Nagarampalli Batchamma (1914) M.W.N. 620. In that case it was held by Wallis and Sadasiva Aiyar, JJ., that where a nearest reversioner unreasonably refuses his consent to make the adoption the consent of remote reversioners is sufficient to validate the adoption.

60. In Venkatarama Raju v. Papamma I.L.R. (1916) Mad. 77 : 27 M.L.J. 638, it was held by Sankaran Nair and Spencer, JJ., that where a nearest sapinda refuses to give his consent on the ground that he would forfeit his right to proprty which he would otherwise get, the refusal of the sapinda was based on improper grounds and that an adoption made with the consent of the remoter sapindas was valid.

61. The position of the next sapindas whose consent is necessary is that they are by virtue of the relationship competent advisers of the widow and proper judges of the propriety of the act of the widow in making the adoption. Where a sapinda sets up an agreement between his father and the widow's husband which according to him prohibts an adoption even when such a contention has been set up by his father in a previous litigation and negatived and persists in this objection and where he says he is not going to give up his reversionary right to succeed by consenting to the adoption, it is difficult to see how he can be a competent judge of the propriety of the widow's act or a competent adviser. If the position of the sapindas is that of a domestic forum then the moment one of the judges takes up the grounds above mentioned as reason for the dissent he ceases to be one who could be a member of the forum and the widow is entitled to look to the consent of other sapindas.

62. It is clear from these authorities that the grounds of objection taken by the plaintiff for his refusal in Ex. EE-11 are personal to himself and based on consideration of his personal benefit and not proper grounds. The fact that he would lose the estate if an adoption was made and the fact that the boy chosen is a son of his enemy would not in my opinion render his grounds of objection proper. It is not suggested, as I said before, that there was anything in the boy rendering him unfit to be adopted to the Gollaprolu branch. The statement that Ramakrishna got some money has not been pressed before us and it is untenable on the evidence. The ground that the 1st defendant was precluded by her husband from making an adoption by reason of the arrangement between the plaintiff's father and the 1st defendant's husband is untenable and was so held in his father's suit. Both the trial Judge and Krishnan and Venkatasubba Rao, JJ., in appeal held that there was no agreement which would preclude the 1st defendant from adopting by reason of an implied prohibition from her husband. The reason given that Ramakrishna being an adopted son had no power to authorize an adoption is equally untenable. Although under Hindu Law Ramakrishna might have a lesser share in his adoptive father's estate because of the birth of a (natural son if the property was partible, so far as the Gollaprolu estate is concerned where succession is to collaterals, both Ramakrishna and the plaintiff stand on equal footing and they get equal shares. No authority has been cited for the proposition that where there are sapindas of equal degree and who share equally in the estate of another sapinda but for an adoption, there is any difference between such reversioners as regards their capacity to consent to an adoption.

63. The only ground in the letter Ex. EE-11 which could possibly be urged as being a proper ground for refusal is ground 4. I have already given my reasons for holding that the reasons given in ground 4 are not correct. I have little doubt on the evidence and from the conduct of the plaintiff that he would not have given his assent to the adoption because his dominant idea was to get the estate. Ramakrishna when he wrote the letter Ex. XVI-(a) 15 days before the adoption was ill and as a matter of fact died about three months after the adoption. The plaintiff who was then a young man had every reason to think that he would be the sole reversioner on the death of the Rani. At any rate he would have been entitled to half of the estate. His contention was that the widow had no power to adopt because her husband had by virtue of an agree-meent between himself and the late Raja impliedly forbidden any adoption. The objection to the adoption went to the root of the title of the 1st defendant to adopt and had nothing to do with any discretion that he was exercising properly or improperly.

64. As regards the statement that the widow ought to have seen him personally, I do not see why she was under any necessity to do so especially as he admits that there was nothing improper in the letter asking for consent (Ex. EE-9).

65. It was argued that the refusal was only tentative and that if she had gone and persuaded him he might have changed his mind. But it is clear from the closing portion of the letter 'it is therefore not possible to give you consent as desired in your letter' that the matter was conclusive leaving no door open. He no doubt says 'if you had come to me and convinced me, I might have consented.' But it is difficult to see how a person who took the grounds as he did in Ex. EE-11 would have been convinced of the propriety of the adoption.

66. The plaintiff's main grounds were that he would lose the estate, that his enemy's son was being adopted and that the widow had no power to adopt. It is argued that he was actuated by the consideration that the inheritance should not be cut up and the widow should not deprive the adopted son of any share in the estate and that the plaintiff was justified in refusing to give his consent. I doubt very much whether the motive to benefit his enemy's son at the expense of the widow would ever have influenced him. Even assuming that there was no arrangement as regards giving one-half of the estate to the widow, it is clear from his letter that he would have refused his consent. His admissions in cross-examination make this clear.

Q. - As you arc on inimical terms with Ramakrishnayya would you lie prepared' under any circumstances to consent to the adoption of his son?

A. - I would object to it on the ground that he belongs to a family which has all along been denying my legitimacy. But if the 1st defendant had come and consulted me properly in person I do not know what I would have said.

Q - Would anything she might say induce you to forget the enmity?

A. - I cannot say what I would have done if she had come and discussed with me.

Q. - Can you mention any circumstances which will induce you to forget the enmity?

A. - I am not able to think of any now.

67. As regards the loss which he refers to in paragraph 1 of his letter Ex. EE-11, he says that it is the prejudice to his reversionary right.

68. Though in the letter Ex. EE-11 the plaintiff says that Ramakrishna conspired with the widow and his brothers and received a bribe for giving his son in adoption he states in paragraph 10 of the plaint as a ground for the invalidity of the adoption that Ramakrishna was too ill and was not mentally or physically able to give his consent. Both the trial Judge and Krishnan and Venkatasubba Rao, JJ., have held that Ramakrishna was mentally and physically able to give his consent to the adoption and to take part in the ceremony of giving. I do not think on the evidence on record it can be held that Ramakrishna was incapable of either giving his consent or giving the boy in adoption.

69. Reference has been made to the evidence of Major Niblock. But Major Niblock says that he attended on Ramakrishna on the 13th of February and subsequently. The negotiations for the adoption took place long before. The evidence of Mr. P. V. Krishnaswami Chetti shows that Ramakrishna was quite capable of exercising his discretion. I see no grounds to disbelieve the evidence of this very respectable witness.

70. As regards the actual part taken by Ramakrishna on the 15th February the date of the adoption, it simply consisted in handing over the boy to the 1st defendant. It is not suggested that any ceremonies had to be performed by Ramakrishna beyond handing over and there is nothing in Major Niblock's evidence to show that he could not have done this.

71. I am of opinion that the plaintiff's refusal to give his consent was influenced by purely personal motives.

72. I have already given my reasons for holding that the adoption was not merely a device for dividing the estate between the 1st defendant and the adopted son, and that the adoption was not made for the purpose of enabling the 1st defendant to raise money to help her brothers in purchasing the Voratla estate but that the debts to discharge which half the estate was given were her debts contracted by her either personally or by her brothers and nephew at her request. I am of opinion that the plaintiff's withholding his consent was not justified.

73. The only next reversioner was Ramakrishna. There is no authority for holding that the fact that his son was going to be adopted would render him incapable of giving his consent. On this point both the trial Judge and Justices Krishnan and Venkatasubba Rao on appeal agree.

74. In Venkammal v. Namasivaya Chettiar (1895) 6 M.L.J. 35 there was only one sapinda whose boy was adopted and it was held that his consent was sufficient to validate the adoption. This case was decided so long ago as 1896. In Parasara Bhattar v. Ranga Bhattar I.L.R. (1880) Mad. 202 there were only two reversioners and the assent of one of them was held to be sufficient when the other refused consent on grounds which were improper. So far as I am aware, the validity of the consent of a sapinda whose son is adopted has never been doubted.

75. I agree with Venkatasubba Rao, J., in holding that the adoption of the 2nd defendant by the 1st defendant is valid. I would allow the appeal and dismiss the suit with costs throughout.

76. However, as my learned brothers Odgers, J., and Jackson, J., have taken the opposite view the appeal will under Section 98, Civil Procedure Code, be dismissed with costs.

Odgers, J.

77. I regret to be unable to agree. I pronounce my own view of this case with some diffidence.

78. This Letters Patent Appeal comes to us in consequence of a difference of opinion between the late Mr. Justice Krishnan and Mr. Justice Venkatasubba Rao. The suit, O.S. No. 34 of 1919 on the file of the District Judge of Godavari, was filed by the plaintiff for a declaration that the adoption of the 2nd defendant by the first was invalid and not binding on the plaintiff and that it does not affect his rights either as reversioner under the Hindu Law or as the Zamindar of Pittapur entitled to a vested reversion in the Gollaprole estate on the death of the 1st defendant.

79. Two main questions were raised for decision on the pleadings : (1) as, to whether the plaintiff is the legitimate or aurasa son of Rajah Gangadhara Rama Rao, and (2) whether the adoption of the 2nd defendant by the 1st defendant is true and valid. The decision of the first of these questions depends on the admissibility in evidence of certain documents tendered in evidence by the defendant in the Court of the District Judge. This will be dealt with at the end of the judgment. The main contention before us has been on the second issue affecting the adoption of the 2nd defendant by the 1st defendant.

80. The genealogical tree set out in the judgment of Mr. Justice Krishnan has been accepted as correct and frequently referred to in the course of the argument. It will therefore be convenient to set it out here in order to show the relationship of the persons concerned.

81. The genealogical table given below shows the relationship of the parties concerned in this litigation and will serve to elucidate some of the questions raised.

(i) Niladri Rao.

|

___________________________|_____________________________________

| | |

(2) Surya Rao, (3) Lakshmi Venkayamma. (4) Venkat Rao,

died 1850 died Decem-

(no issue). ber, 1869.

| |

_______|______________________________________ |

| | | | |

(5) Niladri Rao, (6) Ganga- (7) Surya (8) Venkata Rao, |

died 1854, no dhara Rama Prakasa Rao, Rao, died |

issue. Rao, born adopted to 4-11-1871, |

1844, died Bobbili. no issue, |

1890. widow 1st |

| Defendant |

| (another widow |

_______________|_____ Venkayamma |

| | |

Adopted (12) Plaintiff, Rao, who died). |

(11) Ramakrishna, born 1885, _______________________________|_

1873, | | |

died April, 1914. | (9) Surya Rao (10) Dharma Rao,

several minor died 1887, no died in 1881,

| children. issue, widow no issue.

| Chellayamma.

|

____|_______________________________________________________________

| | | | |

(13) Ganga- (14) Rajagopal. (15) Rajaman (16) Sri Krishna, (17) Murale

dhara Rama nar, adopted, 2nd Defendant, Krishna

Rao. adopted by (minor).

1st Defendant.

82. Rajah Gangadhara Rama Rao (No. 6) who was born in 1844 and died in 1890 adopted No. 11 Ramakrishna in 1873. He died in April 1914. No. 6 who is referred to as the old Raja is said to have had a son, the plaintiff, in 1885 by his wife Mangayamma. A younger brother of the late Raja, Venkat Rao (No. 8) died on the 4th November 1871 leaving no issue but two widows Venkayamma who died in 1889 and the 1st defendant Ramayamma. This lady in 1914 purported to adopt Sri Krishna (No. 16), the 2nd defendant, and it is this adoption that is now in question. In order that the facts may be clear it will be necessary to go back a little into the history of this matter. The old Raja (No. 6) on the 8th December 1869 by Ex. O granted to his younger brother (No. 8), the Gollaprole estate in lieu of maintenance. That is admitted to be an absolute estate to which the widows of Venkat Rao succeeded on his death in 1871. It would also be heritable by collaterals. After the death of Venkayamma, the old Raja brought a suit (O.S. No. 12 of 1889) to recover half the Gollaprole estate from the, 1st defendant. His suit was dismissed in 1891 so that from 1891 the 1st defendant Ramayamma was in sole possession of the Gollaprole estate. On the 1st August 1886 the 1st defendant purported to make an adoption to her late husband No. 8. The old Raja brought Suit No. 30 of 1886 to set aside that adoption. The 1st defendant set up a will in her favour with authority to adopt from her husband. This was decided against her as it was held in effect that the will was a forgery and the adoption was bad. In 1890 the old Raja died and in November 1891 a suit was brought by No. 11 Ramakrishna, O.S. No. 6 of 1891, against the plaintiff impugning the legitimacy of his birth which was found to be illegitimate by the District Judge (Mr. Mackenzie). The High Court decreed in favour of the plaintiff on the ground that he was a persona designate under the will of No. 6 and that it was unnecessary to decide the question of the plaintiff's legitimacy. Their Lordships of the Privy Council in February 1899 took the same view. So up to the present time the only decision on this question of legitimacy is Mr. Mackenzie's judgment. In 1905 the plaintiff No. 12 married and it is said that from that time up to early in 1914 the relations between himself and Ramayamma were extremely cordial. In October 1906 the plaintiff assumed charge of his estate from the Court of Wards. On the 15th February 1914 the 1st defendant made a second adoption to her husband Venkat Rao No. 8 taking in adoption No. 16 the 2nd defendant and this is the adoption now impugned by the plaintiff. The 1st defendant died pendente lite and the 3rd defendant her sister's son is brought on as her representative.

83. In this case it is not contended that the 1st defendant possesses any authority to adopt from her late husband Venkat Rao which the widow set up in the former case, but her authority is founded on the consent of sapindas; nor is the factum of adoption now disputed. It was contended before the District Judge that Ramakrishna, No. 11, the father of No. 16, who is alleged to have given his consent to the adoption of his son by the 1st defendant was not in such a state of health or mind to enable him to validly take part in the ceremony of adoption on the 15th February 1914. There is no doubt a good deal of medical evidence including that of Lieutenant-Colonel W.J. Niblock, I.M.S., as to Ramakrishna's state of mind and body. He certainly appears to have been a very feeble old gentleman suffering from paralysis and probably pthisis also. It is unnecessary however to pursue this topic further since there has been no real contention before us that the factum of adoption is not proved. The question remaining then is as to its validity.

84. It has been established in this province since the Ramnad case in The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M.I.A. 397 that a widow may by custom adopt with the consent of her husband's sapindas. Their Lordships say in that case that it is not the consent of every kinsman, however remote, that is essential but that their assent seems to be required by reason of the presumed incapacity of the woman for independence and they continue, '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.' This was affirmed in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo in which the Privy Council said:

It may be the duty of a Court of Justice administering the Hindu Law, to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property, and it may be in the case of collateral succession, as in the present instance, the rights of parties in actual possession, dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it.

85. This seems to be the first expression of opinion that the rights of property must be considered even though it is the duty of the Courts to investigate the reasons of an adoption from a religious standpoint. The Ramnad case was explained in the Guntur case in Vellanki Venkatakrishna Rao v. Venkata Rama Lakshmi , in which their Lordships say that they consider it dangerous to introduce considerations of the particular motives operating on the mind of the widow and that what the committee in the Ramnad case meant to lay down was that the assent of the sapindas 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.' To this must be added Venkatakrishnamma v. Annapurnamma I.L.R. (1900) Mad. 486 of this Court that the consent of the majority of sapindas will suffice. In Veerabasavaraju v. Balasurya Prasada Rao the Privy Council affirmed the validity of an adoption made with the consent of sapindas but laid down that the consent of remote sapindas without asking for the consent of the nearest is ineffectual and that it is immaterial if the widow knew that the nearest sapinda, if consulted would have refused his consent and in Kristnayya v. Lakshmipathi , the Privy Council quoted the passage from Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo set out above and stated that 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 and that save in exceptional cases the consent of the nearest sapindas must be asked, and if not asked, it is no excuse to say that they would have refused.

86. The 1st defendant accordingly consulted No. 11 Ramakrishna, the father of the boy she designed to adopt, and No. 12 the plaintiff. As to how exactly she consulted them will be explained later on. Of these Ramakrishna No. 11 consented and the plaintiff No. 12 refused. There is therefore prima facie no majority of the nearest sapindas such as is required by the decision in the Privy Council in Kristnayya v. Lakdhmipatthi , though, I imagine, that if for any reason we are entitled to disregard the dissent of the plaintiff it would be difficult to hold the adoption invalid on the ground that there is only subsisting the consent of Ramakrishna himself, There is one passage in the judgment of the Privy Council in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo , which might possibly be taken to imply that the consent of the natural father of the boy to be adopted when he is a near sapinda stands on a somewhat lower plane from the consents of other near sapindas. I am however doubtful if their Lordships really meant to make any such distinction. It is therefore necessary in this case to canvass the refusal of consent to this adoption on the part of the plaintiff, for, if we are satisfied that the plaintiff withheld his consent from personal or malicious or other improper motive, we should, on the case-law which will be cited on the point hereafter, be justified in excluding his refusal and we should therefore be left with the consent of Ramakrishna. If, on the other hand, the plaintiff was justified in refusing his consent there is clearly no majority of consents as required by law and the adoption must be declared invalid. There is another possible line of enquiry and that is into the motives which actuated the widow, the 1st defendant. This is no doubt an enquiry of some nicety as the Privy Council has said and there is, I think, no case which has declared invalid an adoption depending directly on the motives of the widow alone unless those motives amount to a desire to adopt for the sole purpose of practically dividing the estate with the person to be adopted. As pointed out by Mr. Justice Krishnan though there is authority in Bombay which will hereafter be referred to for holding that a corrupt motive in the widow may be insufficient to invalidate the adoption though it may render a corrupt bargain ineffectual, the position is different when we are considering the question whether there is sufficient evidence of assent on the part of the kinsmen to support an adoption as in the present case. Mr. Justice Krishnan held that there was no such assent and that this adoption must therefore be declared invalid. Mr. Justice Venkatasubba Rao held that there was such sufficient assent as the plaintiff's refusal was bad and must be discarded on the ground that he had refused by reason of grounds personal to himself. I proceed therefore first to deal with this question of the consent of the sapindas. It may be said in passing that it was faintly argued that even if the plaintiff's dissent was found to be valid there was a consent by a remoter sapinda, one of the younger sons of Ramakrishna which combined with ,Ramakrishna's assent would amount to a majority. Next after the plaintiff the senior sapinda is undoubtedly Ramakrishna's elder son Gangadhara Rama Rao. His consent was admittedly not asked. So there is nothing in this point.

87. It is not quite clear when the decision to adopt the 2nd defendant was taken by the 1st defendant. Some of the witnesses, e.g., D.W. 1 and D.W. 8 (who is the 1st defendant), say that she wished to adopt the 2nd defendant about a year before the adoption was made as she fell ill. Mr. P.V. Krishnaswami Chetty (D.W. 9) now deceased who was a vakil of this Court and in extensive chamber practice said he was consulted about two months before the adoption by D.W. 27 and D.W. 1. He seems to have been consulted in order to get the consent of Ramakrishna who is said to have been objecting, through the Rajah of Venkatagiri, the brother of Ramakrishna, whose adviser he (Mr. Chettiar) was, 3 or 4 weeks before the adoption Ramakrishna himself interviewed Mr. Chettiar on the subject of this adoption. The formal letter asking for the consent of Ramakrishna to adopt and also for permission to adopt his fourth son, the 2nd defendant, is dated 27th January, 1914 (Ex. XV). One phrase in the letter is possibly important. 'So, as I have to adopt with the permission of the sapindas, I write this letter, etc.' Ramakrishna replied on the 30th January giving his consent to both the requests of the 1st defendant. 1st defendant then approached the plaintiff whom she addresses as the 'Zemindar of Pittapur.' (Ex. EE-9). It recites that she is anxious to adopt for securing a good end to her late husband, performing his ceremonies, etc., and perpetuating the progeny. It also recites that it had been previously decided that she had no authority from her husband to adopt and concludes 'I therefore write this letter to you earnestly requesting your permission for me to adopt the said boy.' It will be observed that there is no reference in the letter to the plaintiff being a sapinda, and we find from the evidence that the letter was written under legal advice owing to the fact that it might some day turn out that the legitimacy of the plaintiff was formally established. In the meantime the 1st defendant was obviously unwilling to' address him in any way which might show that she admitted his legitimacy. There was no reply to this letter and it may be mentioned in passing that the 1st defendant came to Madras in anticipation of the adoption ceremony on the 4th February. From Madras she wrote a reminder to the plaintiff (Ex. EE-10) on the 7th February. On the 11th the plaintiff sent a reply Ex. EE-11 in which he sets out seven reasons for refusing. The letter seems to be very important and in fact it is the point on which in my opinion the decision of this case turns. I therefore set it out at length:

(1) I have come to know that you are not adopting with an honest purpose either for the spiritual salvation of your deceased husband or for the perpetuation of his line but bearing spite against me for my not rendering pecuniary help to your brothers as requested by them arid you and with a view to put me to loss and for the selfish gain of all of you, you have intrigued with Rajah Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur Garu who has been my long-standing enemy and arranged to adopt his son.

(2) That you have resolved upon making the adoption with the motive mentioned in paragraph 1 supra and have not applied for my consent with an honest mind will be evident from the very fact that, instead of asking for permission to adopt a suitable boy, you wrote to me to say that you wanted to take in adoption the fourth son of Sri Rajah Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur Garu and were very desirous of having my consent for the same.

(3) Had you come to me and told me the necessity that has arisen for you to make an adoption and the reasons for adopting that boy, I would have been in a position to discuss with you about it in person and express my opinion to you.

(4) You, your brothers and Sri Rajah Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur Garu having joined hands in the manner set forth above in order to put me to loss, you and your brothers having made some arrangements for yourselves, as consideration for your agreeing to adopt his son to make an adoption, and having thus decided upon the arrangements, you and your brothers went to Madras and being bent upon adopting that boy, you wrote to me the letter merely for the sake of formality and not with an honest desire to obtain my consent.

(5) In pursuance of the arrangement that was made by your late husband and my father, the late Sri Rajah Rao Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu, you were precluded by your husband from making an adoption.

(6) The consent given by Sri Rajah Rao Venkata Surya Mahipathi Ramakrishna Bahadur Garu, for his own gain, to your adopting his son is not valid.

(7) Further, I being the aurasa son, Sri Rajah Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur Garu, who is an adopted son, has no authority to give the consent, it is therefore not possible to give you consent as desired in your letter.

88. As stated, the adoption took place on the 15th February 1914 and was evidenced by an adoption deed Ex. XVI, attested by several respectable witnesses. The day after, on the 16th, what has been called a settlement deed, Ex. XV11, was executed by the now adopted son to the 1st defendant giving' her one-half of the Gollaprole estate. This is another important document and I therefore reproduce the essential portion of it.

89. 'So, we settle and confer on you, by means of this document, one-half of the Gollaprole estate, described in the schedule hereunto annexed and situate in Pittapuram Sub-division, Godavari District, and worth about one lakh of rupees, for liquidation of your debts and for meeting the expenses of your pilgrimage, etc.; you may therefore enjoy the said one-half estate undisputedly with rights of gift, sale, etc. As per agreement entered into between both of us regarding my conveyance to you of the said property as aforesaid you shall yourself liquidate your debts and we shall have no concern therein.' On the same date, a maintenance deed Ex. XVII (a) was executed by the adopted son to the 1st defendant charging his half of the Gollaprole estate with the payment of Rs. S00 a month as 1st defendant's maintenance.

90. The first and very important consideration is whether these settlement and maintenance deeds were the consideration for which the adoption was made. The evidence is that up to December 1913 the plaintiff and the 1st defendant were on friendly, almost affectionate terms. The plaintiff details various attentions and' kindnesses paid to his family by the 1st defendant. These are commented on by the learned District Judge in paras. 62 and 63 of his judgment and there is no reason to believe that this state of things did not exist, although it is now said by the 1st defendant that they were all pretence on her part and that she only acted as she did in order to avoid making an open enemy of the plaintiff. I am not prepared to believe this. She had been since 1891 in sole, possession of the Gollaprole estate. She kept house with her two brothers and sister's son at Undoor. One of them is D.W. 27, her brother Seetharamaswami, and D.W. 22, her brother's son Venkayya. Prakasa Rao, her sister's son, was not called. Although it is stated by D.W. 22 that the 1st defendant's accounts are kept separate from those of the family, it is very doubtful if, in view of the evidence of her brother, D.W. 27, that the 1st defendant had been bearing all the expenses of the family and had given them money and whatever they wanted, this statement can be relied on. D.W. 27 purchased the equity of redemption in the Voratla estate for a small sum and admittedly required 2 lakhs and a quarter to pay off the Zamindar of Tuni if he was to obtain the estate as seemed to have been his design in 1913. This witness denies that in June or July 1913 he asked Mr. Seetharamayya, acting Dewan of Pittapur, to intercede with the plaintiff to get him a large sum of money for this purpose. He says also that he never asked Mr. Subbarayudu, the Dewan, for financial assistance for redeeming the Voratla estate or discharging his debts. On the other hand, Mr. Seetharamayya (P.W. 111) who was Dewan of Pittapur from 1910 to 1913 distinctly says that D.W. 27 came 3 or 4 months before his term of Dewan expired (which would be in May or June 1913) to ask him to suggest to the Raja that the latter should make a gift of Rs. 2 or 21/2 lakhs to him. The witness adds that he (Seetharamaswami) wanted that money to clear some heavy debt in connection with some estate trouble with the Tuni Raja. It seems to me there is no reason to doubt the words of this retired Deputy Collector. Further the plaintiff received certain requests for money in a rather curious form, namely, rukkas, or anonymous letters enclosed in signed letters the object being, I presume, that they can be taken away and dealt with separately and are not necessarily disclosed to any one reading the main letter. There are a number of these addressed to Chiranjeevi Rajah Babu of which one Ex. EE is said to have been written in May or June 1913. These rukkas are identified by the dates on the covers or on the letters in which they are enclosed. Ex. EE-2 is signed by the 1st defendant and runs as follows : 'If you are willing to render the help asked for by my younger brothers, etc., and if you permit, they will come and explain to you the pros and cons (situation) and settle Voratla affair. It is after receiving your order that they will give up, or take up Voratla estate. As Voratla estate has got to be settled at once, please consider and reply immediately.' Ex. EE-3 is a letter signed by the 1st defendant, dated 9th December 1913, and addressed to the plaintiff and enquiring as to the welfare of plaintiff's family. With this is said to have been enclosed Ex. EE-5 complaining that the (plaintiff) has not replied to the 1st defendant's two requests for help for her brothers. If the plaintiff's help cannot be obtained the brothers will give up the Voratla estate. Ex. EE-6 is a signed letter from the 1st defendant blessing the plaintiff and calling him 'my son' and asking after the welfare of his wife and children. With that was enclosed Ex. EE-8 another request for an answer as to whether the brothers can expect financial help from the plaintiff. The date of this is said to be 3rd January 1914. I may add that Mr. Grant for the appellant did not seriously contend that these rukkas were not genuine as was contended before the District Judge or that they did not emanate from the 1st defendant. The plaintiff (p. 760) gives evidence as to these requests for pecuniary help and also with regard to these Ex. EE series of letters and rukkas. He had one personal talk with the 1st defendant about this monetary assistance when he was on his way from Pittapur to Madras which was in November 1913. The 1st defendant accompanied the plaintiff as far as Samalkot and observed that it was an occasion when all should be happy as the plaintiff had just had a second son born. She said 'they are happy and you must also make me happy. Please do not forget about my request to you.' The request was to help her brothers and nephews with money. Besides this evidence of the need of money on the part of the 1st defendant's relations, reference may be made to the following evidence and findings by the District Judge. Although D.W. 27 asserts that he had money on hand for the purpose of redeeming the Voratla estate and although he says his accounts will show the state of his finances, none of these accounts have been filed by him as nobody told him that they were necessary. It is quite obvious from the evidence of this witness (pages 650 to 652) that the amount of the family indebtedness was very considerable. It is said on behalf of the appellant that all they had to do was to combat the suggestion that money was wanted to redeem the Voratla estate when as a matter of fact it was not used for that purpose. This may be at once admitted and the reason may be found in the evidence of this witness, that instead of being able to acquire it for about Rs. 21/2 lakhs a decree was ultimately passed on the mortgage for Rs. 7 lakhs and odd. There is further the evidence that although the money obtained on mortgage of the half share of the Gollaprole estate retained by the 1st defendant was not 'Utilized for the purpose of redeeming the Voratla estate, it was utilized in payment of the debts of this family. These are said to have been paid by Kuppiah, D.W. 1 (page 424). He says 'no list of the 1st defendant's debts was given to me before the mortgage bond. There is no writing to show that I paid the moneys and discharged those debts.' Without preparing a list he made over all the discharged documents to the Raja of Venkatagiri. The latter's Khajangi (treasurer) D.W. 28 denies that any such documents were received in the Raja's treasury. The District Judge in paras. 105 and 107 comes to the conclusion that the 1st defendant's brothers did require money to the extent of over Rs. 2 lakhs in 1913. The ancestral property of the family seems originally to have yielded about Rs. 400 a year. After the settlement it yielded Rs. 40,000 a year. The same witness D.W. 27 giving evidence in 1887 in O.S. No. 3 of 1887, Ex. HHHHH puts the family property at that date at about Rs. 3,000 capital value. D.W. 22 also speaks about the family debts. He of course would say that the debts of the 1st defendant were discharged by the loan raised from the Raja of Venkatagiri. He can give no details of the debts amounting to Rs. 40,000 or Rs. 50,000 that were existing at the time of the 2nd defendant's adoption. I agree with the learned District Judge that these two witnesses practically admitted that what they called the 1st defendant's debts were really borrowed for their own family purposes and the bonds for them were executed by these two witnesses. It is, on the probabilities as well as on the actual evidence, extremely unlikely that the 1st defendant had any serious amount of debt of her own. It may be remarked that any debts she had were of course not binding on the estate and the reversion and there is no explanation of her alleged desire to clear off her own debts by the arrangement that she entered into. In this connection, it may be mentioned that the 2nd defendant admits that the amount of debt was not mentioned to him nor was the value of the half share of the estate which it was arranged that he should keep. It is also noteworthy that the 1st defendant admits that in Exhibit XVIII the mortgage executed to the Raja of Venkatagiri in July 1914, the debts are described 'as our debts' and lands belonging to the brothers of the 1st defendant were also included in the mortgage. This seems to me to put the question beyond doubt.

91. With regard to the terms of the settlement, these, it will be remembered, are alleged to have been arranged subsequent to the, adoption, in order to counter the suggestion, that the terms were the condition on which the adoption was made. P.W. 113, Narasinga Rao says distinctly that these terms were a condition precedent to the adoption. There is, however, some reason to suspect his evidence. Mr. Justice Krishnan apparently does not rely on it, and Mr. Justice Venkatasubba Rao definitely says it is untrustworthy. I am therefore prepared to leave it aside altogether. When speaking of 'terms' I allude to the division of the estate between the 1st defendant and the 2nd defendant and to the maintenance arranged for the 1st defendant and to the marriage arranged for the 2nd defendant after his adoption when it was settled that he should marry D.W. 27's daughter, i.e., 1st defendant's niece or brother's daughter. It is said that as the refusal of the plaintiff to advance money for the purpose of helping the 1st defendant's family was not until the 11th February 1914, that refusal can have had no effect on the 1st defendant's mind with regard to this adoption which some of the witnesses say was settled by her a month or more before the actual ceremony on the 15th February. This does not seem to me conclusive for after receiving no reply from the plaintiff for some time to her requests for money and particularly having failed to obtain a satisfactory reply at her interview in November 1913 already mentioned, she may quite well have made up her mind after that time to adopt in order to spite the plaintiff. It is a very curious thing if it is the fact, that the 1st defendant set out from Undoor to Madras for this adoption ceremony as she did on the 4th February (and it must be remembered that the adoption was originally fixed for the 8th) without any of these terms settled or even suggested. According to the 1st defendant she suggested to the 2nd defendant that he should take the whole estate and discharge her debts. He said he would take half and that the 1st defendant might retain half for the purpose of discharging these debts. Although the 1st defendant would make it appear that this conversation with the 2nd defendant took place after she came to Madras, the 2nd defendant on the other hand denies that he had any conversation with the 1st after she came to Madras and before the adoption took place. On the other hand, the 1st defendant had two interviews with Ramakrishna in Madras and I think there can be no doubt that the terms were in fact arranged between Ramakrishna and the 1st defendant. D.W. 1 was asked by the 1st defendant to speak to Ramakrishna about the terms. Ramakrishna replied that the boy should be consulted as he was a major. The words of this witness D.W. 1 Kuppiah as to these terms are somewhat significant : 'The 1st defendant said that in case of the adoption half the estate should be given to her to liquidate her debts which amounted to 2 lakhs or that the adopted son should take the whole estate and discharge these debts.' The boy said that he would give away half the estate in order that the 1st defendant might pay her debts and he would be content with the other half. The 1st defendant accepted this proposal. The 1st defendant (as D.W. 8) herself says, 'At the time of the adoption I made arrangements for the discharge of these debts.' And the 2nd defendant D.W. 49 puts it even more plainly that D.W. 1 came to him and told him (the witness) that the 1st defendant had informed Ramakrishna that she wished to adopt him (the witness) 'on condition of my taking the whole estate and discharging her debts myself.' Ramakrishna however sent word through D.W. 1 to ask if he was willing. The witness replied that it would be better if he were given half the estate free of debts. It is true that when the deposition was read over to the witness he tried to go back on this statement (page 155). The learned District Judge however notes that the witness clearly stated in the manner recorded in the deposition.

92. Another noteworthy feature is that although Mr. Krishnaswami Chetty was consulted and drafted the adoption deed he heard no word about these arrangements till five or six days before the adoption as regards the settlement and heard nothing of the marriage till after the adoption. He never saw the draft of the settlement deed, nor was any question of the discharge of debts put before him before the adoption. Mr. Krishnaswami Chetty's evidence has been canvassed for the respondent at some length chiefly on the ground of certain alleged inaccuracies about the mental or physical condition of Ramakrishna either at the ceremony or at the interview that he had at Mr. Chettiar's house. The witness may be inaccurate in some medical details or even positively wrong, but I do not see any reason on this account to reject his evidence in the main. If (then the settlement and the other arrangements were all perfectly legal and there was nothing to hide why did not Mr. Krishnaswami Chettiar know about them? We have the fact that the stamps for these deeds, adoption, settlement and maintenance, were all purchased on the same day, namely the 6th February, and taking the evidence as a whole I think it is impossible to escape from the conclusion arrived at by Mr. Justice Krishnan that 'it is too much to ask one to believe that the settlement and maintenance arrangements had no intrinsic connexion with the adoption.' We have seen the 1st defendant's keen desire to raise money for her brothers from the plaintiff which ended in failure. Nothing is more likely than that, having failed in this respect, she should entertain the idea of adopting this boy, the son of Ramakrishna, the sworn enemy of the plaintiff and of dividing the Gollaprole estate with him and thereby defeat the plaintiff's reversionary right as to that half. If that is so, these arrangements were conditions to the adoption and by that I mean that but for such arrangements the adoption would not have been made. We are asked to consider that the 1st defendant had been ill since about 1912 of which there is very little evidence and that, as an old lady of 63 or 64, she felt that her days were numbered and that she was actuated by a desire for her husband's salvation and to perpetuate his line. I am bound to say that in my view this is difficult to believe in the case of this lady who waited 15 years from 1871 to 1886 to attempt to adopt to her husband and then produced a forged authority and waited another 28 years in order to attempt the same thing. As in the case of a surrender by a widow to a reversioner, so in an adoption, the operation must not be a mere device to divide the estate with the reversioner. Rangasami Goundan v. Nachiappa Gaundan (1919) L.R. 46 IndAp 72 : I.L.R. 42 Mad. 523 : 36 M.L.J. 493. It is however said on the authority of certain cases to be referred to that the widow's motives cannot be canvassed and that there is a presumption that the widow has performed her duty from proper motives. The onus lies heavily on him who seeks to set aside the adoption on the ground of corrupt motive. Patel Vandravan Jekisan v. Patel Manilal Chunilal I.L.R. (1891) Bom. 565. Further in Mahableshwar v. Durgabai I.L.R. (1898) Bom. 199 it was held that if the motives of a widow are of a mixed character the presumption that she performed the ceremony from proper motives is not rebutted and the adoption is not invalid if the ceremony has been proved to have been performed from corrupt motives, e.g., terms arranged between the adopter and the father of the adoptee. In that case the District Judge did not find that the widow had not the spiritual benefit of her deceased husband in view when she made the adoption. It must be remembered that in Bombay a widow may adopt provided she is not prohibited expressly or impliedly by her husband himself from doing so. There is no such thing there as an adoption with the consent of sapindas and the Full Bench of the Bombay High Court that considered the matter of the widow's motive in Ramachandra Bhagavan v. Mulgi Nanabhai I.L.R. (1898) Bom. 558 held that any discussion of her motive was irrelevant. Parsons, J., observes that such enquiry would be irrelevant because the action of the widow is that of a person who does what she has the right to do, but where she has not this full power but is obliged to obtain the consent of other persons to her action, the case is very different. He therefore held that the language of the Privy Council in the Ramnad Case was inapplicable to the case of a widow who had in herself full and free power to adopt. Ranade, J., also stresses this (distinction and notes that the 'Ramnad Case came from the province of Madras where the restrictions on the widow's choice are more strictly enforced.' Fulton, J., observed 'In Southern India, we know, on the authority of the Ramnad Case that the assent of kinsmen is held sufficient to evidence the correctness of the widow's motive. Here, however, no such settled rule prevails.' Indeed it would seem that no such decision as that in the Ramnad Case would be possible in a matter of this kind arising in Western India. I am, therefore, prepared to hold that this adoption is invalid because it was made with a corrupt motive, namely, the sole desire of dividing the inheritance with the adopted son. It has been pointed out more than once that secular motives very largely enter into this question, for instance in Veerabasavaraju v. Balasurya Prasada Rao the Privy Council has set out a number of secular reasons which should guide the sapindas in considering a contemplated adoption, such as succession to the estate, its protection, and the introduction of a new co-parcener, and their Lordships refer to their decision in Vellanki Venkatakrishna Rao v. Venkata Rama Lakshmi , which shows clearly that rights to property cannot be left out of consideration in the determination of the question. In fact Mr. Justice Ramesam in a recent case Anne Brahmayya v. Chelasani Rattayya (1924) 20 L.W. 503 asserts that temporal considerations should have as much weight as spiritual in these cases referring with approval to the passage extracted above from Vellanki Venkatakrishna Rao v. Venkata Rama Lakshmi , quoted together with a passage from Gulab Chandra Sastri's book that adoption is more a temporal than a spiritual institution. Veerabasavaraju v. Balasurya Prasada Rao . Under the circumstances set out it seems to me it is impossible to say that this widow was in truth actuated by any spiritual motive whatever. It is suggested that in this case we should hold that the conditions are bad or voidable, but that the adoption must stand, reliance being placed on Bhasba Rabidat Singh v. Indar Kunwar (1889) L.R. 16 IndAp 53 : I.L.R. 16 Cal. 556, and the latest case of the Privy Council Krishnamoorthi Aiyar v. Krishnamoorthi Aiyar . In the former the adoption was not fraudulent or corrupt and there were no conditions attached to the adoption, the alleged agreement with the natural father being that the widow should retain the whole estate for her life. It appears to me that that case is very different from the one before us, and I have already held that the terms were a condition on which the adoption in question took place. In the latter their Lordships while upholding an arrangement on an adoption whereby the widow was to enjoy the property during her lifetime or for a less period, that arrangement being consented to by the natural father before the adoption, as valid by custom, held that an agreement by the natural father is not effectual to validate any other disposition taking effect after the adoption. Where the adoption takes place before such an agreement, of course matters are different. It seems to me that this case is not affected by the decision in Krishnamoorthi Aiyar v. Krishnamoorthi Aiyar1 because the settlement here preserves to the widow an absolute estate in a half, a state of things expressly referred to by their Lordships at the end of the judgment and for which they thought no custom has been proved to exist and that such arrangements are against the radical view of the Hindu Law. This would be enough to dispose of the appeal were it not that I think an equally strong case may be made on the refusal of the plaintiff to consent. It is said that the refusal is bad because it is based entirely on personal motives, that in the words of Parasara Bhattar v. Ranga Bhattar I.L.R. (1880) Mad. 202 the consent is refused from interested or improper motives or without a fair exercise of discretion. Cf. also Nagarampalli Kamesam v. Nagarampalli Batchamma (1914) M.W.N. 620 and Venkatapathi v. Punnamma (1915) M.W.N. 620. The law has set up what may be called a domestic tribunal, namely, the sapindas, who are to judge as to the contemplated action of the widow in making the adoption. Their decision or at least their refusal, since there is some authority to the effect that an assent of a sapinda cannot be scrutinised Viswasundara Rao v. Somasundara Rao I.L.R. (1920) Mad. 876 : 59 IND.CAS. 609 dissented from however in Anne Brahmayya v. Chelasami Rattayya (1924) 20 L.W. 503 is only to be canvassed if the refusal is obviously improper. I shall shortly take each of the seven points contained in Ex. EE-11.

93. No. 1. The plaintiff says he has come to know that the 1st defendant is not really actuated by any honest or spiritual purpose but from spite owing to his own refusal to advance money. The plaintiff's evidence is that he caused enquiries to be made through his Dewan who is now dead and from what has been said it appears that the plaintiff was justified in making these accusations. He then goes on to say that the adoption is being made 'with a view to put me to loss and for the selfish gain of all of you.' Now it is said that that is a pure personal ground and ought to be discounted. It only sets out, be it noted, the object or one of the objects with which the adoption is being undertaken and it seems to me that a sapinda is entitled to show that if the adoption is not undertaken with any honest or spiritual purpose, it is undertaken out of spite with a view to put him to loss and make a gain for the adopter since he is thereby merely amplifying or explaining his grounds for asserting that there is no honest purpose in the adoption.

94. No. 2. He objects to the boy.

95. No. 3. He points out that if the 1st defendant had come and seen, him and convinced him of the necessity of adopting at all and the reasons for adopting Ramakrishna's son he would have been in a position to discuss the situation. It is said that this is unreasonable because the plaintiff in cross-examination could not suggest exactly on what lines the discussion would have proceeded. It seems to me a reasonable request. Here is a lady up to a very short time before this date on close and affectionate terms with the plaintiff and his family suddenly turning round and proposing to adopt the son of Ramakrishna who had impugned in Court plaintiff's legitimacy. I think that point No. 3 is a fair, and as far as I can see, honest proposal.

96. As to No. 4, it alleges that D.W. 1 and her brothers and Ramakrishna have joined hands in order to put the plaintiff to loss, 'You and your brothers having made some arrangements for yourselves as consideration for your agreeing to adopt his son.'That I think is proved.

97. The next allegation is that Ramakrishna received a bribe for giving his consent. We have not been directed to any evidence as to this and the point was not argued.

98. The next complaint in the paragraph is that the letter (EE-9) was sent merely formally, that his consent was requested formally and with no honest desire to obtain his consent as a sapinda. As remarked above 1st defendant did not address him as a sapinda and she did not consult him as a sapinda and she had no idea of consulting him as a, sapinda. In fact, one is rather led to the conclusion that she would not have consulted him at all had it not been for the advice of her lawyers that it might tarn out that the plaintiff was really the aurasa son of the old Raja and that therefore it would be as well to consult him. There is some evidence that the 1st defendant had made up her mind to make this adoption whatever the plaintiff said. No reply was received till the 11th, that is to say, one week after she had set out from Undoor to Madras in order to be present at the adoption. The adoption was made in Madras. In Ex. EE-12, a letter sent to the plaintiff after the adoption on the 16th February 1914 she says she was advised that her asking for his permission was unnecessary, ridiculous and objectionable, that she nevertheless asked for the permission 'regardless of the truth about it, fearing that you might, because of the wealth you have secured accomplish anything at any time.' She also points out that as to the suggestion that she should have adopted a son of the plaintiff she was unwilling to adopt him 'due to your suspicious aurasathwam (or parentage).' Venkayya (D.W. 22) in his evidence (page 87) says that the adoption of the 2nd defendant had been settled 10 or 15 days before the letter Ex. EE-9 was written. He also states that the 1st defendant decided to adopt the 2nd defendant whether the plaintiff consented to the adoption or not, and the 1st defendant admits that she did not apply to the plaintiff as sapinda but simply because he was an influential man and to save trouble (page 474). To the same effect is Ramayya's (D.W. 27) evidence that 1st defendant did not think plaintiff's consent was necessary but the vakil advised that his consent should be obtained.

99. With regard to point No. 5, it is said that there was an agreement by Venkat Rao and the old Raja not to adopt. It is difficult to see how this could bind the 1st defendant and there is no doubt that that is a bad reason.

100. Point No. 6 alleges that the consent of Ramakrishna is invalid. This point as stated was strenuously contested before the District Judge but was not persisted in at either of the hearings in this Court.

101. No. 7 is also a bad reason, viz., that Ramakrishna, the adopted son of the old Raja, had no power to give consent while the plaintiff as aurasa son is in existence.

102. I am therefore unable to say upon the best consideration that I can give to the terms of Ex. EE-11 that the plaintiff has refused his consent from dishonest or improper motives or without a fair exercise of discretion. Under the circumstances I think it was the duty of the plaintiff to refuse because it is the duty of the domestic tribunal, the sapindas, to see that the act done by the widow should be 'in the proper and. bona fide performance of a religious duty' as the Ramnad case says 'and neither capriciously nor from a corrupt motive,' This duty, though it has been explained, does not seem to me to have been abrogated, by the decision in Vellanki Venkatakrishna Rao v. Vekata Rama Lakshmi '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 this or that sapinda but upon a fair consideration of what may be called a family council of the expediency of substituting an heir by adoption to the deceased husband.'

103. It appears to me that applying this as the test it is impossible to say that this adoption was bona fide made by the widow from a proper motive and that therefore the refusal of the plaintiff to assent to this proceeding was justified. If that is so, we have one consent and one refusal, and in my opinion there is no such majority of sapindas as is required by the Privy Council judgments above referred to. I do not think it was intended that whereof two sapindas - one consents and the other refuses you are merely to disregard the latter and say that as you have one consent that is enough to validate the adoption. I therefore agree with the conclusion of Mr. Justice Krishnan that there is here not-such an assent of kinsmen as would support the adoption.

104. As to the point of legitimacy Mr. Grant for the appellant contends that the depositions in O.S. No. 6 of 1891 ought to have been received in evidence in this case in order to prove the illegitimacy of the plaintiff under Section 33 of the Evidence Act on the ground that the old Maharaja is dead, Ramakrishna is dead, and that the doctors who gave evidence in O.S. No. 6 of 1891 and to whom certain admissions are said to have been made are also dead. It will be remembered that in O.S. No. 6 of 1891, Ramakrishna was the plaintiff and he died in 1914 and the defendant there is, the plaintiff in this suit. The question is, was Ramakrishna the representative-in-interest of the 2nd defendant, the alleged adopted son? The appellant is claiming as the representative of Venkat Rao. He has obviously never been a legal representative of Ramakrishna. The contention apparently was that Ramakrishna represented the whole body of the reversioners and the suit was not personal to himself. Both the District Judge and the learned judges of this Court have held against these contentions and have given very full reasons for their decisions. Nothing has been shown to me to cause me to come to any other conclusion than that arrived at by the learned Judges. The appeal must in my view be decided in favour of the plaintiff on both the grounds argued and therefore must be dismissed with costs.

Jackson, J.

105. Suit to declare an adoption invalid. The Lower Court decreed the suit and defendants appeal.

106. Venkat Rao, brother of the Maharaja of Pittapur, died in 1871. His widow 1st defendant, and another widow survived him until 1889 from which date 1st defendant was sole survivor, enjoying the life-interest in the Gollaprole estate. She lived with her own three brothers, one of whom is D.W. 27, and, as he says, she paid all household expenses, and made him gifts, so that his income from Rs. 2,000 ancestral property, rose to one of Rs. 40,000. In 1886, fifteen years after her husband's death, she took her sister's son in adoption, claiming to have authority from her husband. This authority based on an alleged copy of a document in the Collector's office was found to be a forgery and the adoption was set aside in a suit brought against the 1st defendant by plaintiff's, father. Ex. SSSS-4. His father died in 1890, and plaintiff - succeeded to the Pittapur estate by virtue of a will. His adoptive brother, the 2nd defendant's father, challenged his claim to be the son of the Raja in 1891; a point which was never finally determined by the Courts, because the will gave sufficient title to the property. The Privy Council pronounced judgment in this matter in 1899. Sri Rajah Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur v. Court of Wards and Venkata Kumari Mahipathi Surya Rao . The 1st defendant accepted the plaintiff as her nephew, and was on terms of affectionate intimacy with him and his family during the next fourteen years, throughout which she continued to live with her brothers. This brings us to 1913, when in about June her brother D.W. 27 came to the Dewan of the Pittapur Raja, P.W. 111 (page 756) and suggested that the Raja should give him Rs. 21/2 lakhs. The brother denies this (page 651) though he admits (p. 650) that he required Rs. 21/4 lakhs. All the Courts so far have accepted the statement of the Dewan as true,; and as this brother in the previous suit tried to affirm the forged authority to adopt, he may fairly be described as an 'unscrupulous man. There are several notes from the 1st defendant to the plaintiff in the matter of this Rs. 21/2 lakhs which the trial Court (paragraph 106) accepted rightly, in my opinion, as genuine, Exs. EE - EE - 8, pages 1071 - 1085. They are not dated, but the plaintiff's statement that they came in 1913 may be accepted. The last is put by the District Judge to 3rd January 1914 (paragraph 105). In November the plaintiff saw the 1st defendant and did not accede to her request to help her brothers. On 4th February 1914 he got the letter Ex. EE-9, dated 2nd February, in which the 1st defendant announces to him for the first time (as he states and may be accepted) that she had decided to adopt the son of the adoptive brother who challenged the plaintiff's succession in 1891.

107. Somewhere about the 1st of December (more than two months before February 15), the 1st defendant took legal advice about this adoption from Krishnaswami Chetti, D.W. 9. Venkatasubba Rao, J., observes that his evidence carries much weight from the fact that he at one time was a great figure in legal circles at Madras. The trial Judge on a perusal of his deposition taken on commission thought him shuffling' and. evasive. Except for a certain vagueness about medical details which were no concern of his, I do not find his evidence intrinsically bad, and though its extrinsic claim to credibility is not fully upon the record, I accept Krishnaswami's statement thn: he is a retired vakil of this Court as sufficient guarantee of probity, and prefer to regard him as a trustworthy witness. Presumably as a result of his advice letters were sent to the nearest sapindas, the plaintiff and his adoptive brother on 2nd February and 27th January respectively, and the adoption was fixed for 8th February (page 507). On 7th February no reply had come from the plaintiff and he was sent a reminder, Ex. EE-10. On 11th February he replied refusing his consent, Ex. EE-11. On 1.5th February the adoption was nevertheless performed, and, T may add, that I see no reason to hold that the performance itself was other than valid. But three, four or five days before the ceremony, Krishnaswami Chetti had a surprise. He suddenly came to know that the boy's father had agreed to make a gift of some part of the property to Ramayamma, the 1st defendant; and with that deed of gift he had nothing to do. The stamp-paper for it was bought on the 6th February, so the parties had kept their secret well. Over this episode of the gift there is much contradiction and prevarication which to my mind is unaccountable if the parties are speaking to a plain, honest transaction. Pakkam Kuppiah, D.W. 1, a servant of the Raja of Venkatagiri, who was instructing Krishnaswami Chetty and acting generally as go-between, says, '1st defendant said that in case of the adoption half of the estate should be given to her to liquidate her debts which amounted to two lakhs or that the adopted son should take the whole estate and discharge these debts. 1st defendant asked me to speak about this matter to Ramakrishnayya and I did so. Ramakrishnayya said to me that the boy should also be consulted as he was a major. I therefore asked the boy. The boy said that he would give away half the estate. The 1st defendant accepted this proposal.' The 1st defendant herself deposes : 'After the adoption was made I proposed to the 2nd defendant to take the whole estate and clear off my debts and he said he would take half.... I made this proposal through D.Ws. 27 and 1.' The adoptee, 2nd defendant, D.W. 49 denies that he spoke to the 1st defendant before the adoption. He bears out D.W. 1, that the latter came to him after consulting his father, but he does not agree that the proposal came originally as an alternative; that he should pay the debts or give half the estate. He says 'I replied it would be better if I were given half the estate free of debts.' He admits however that he knew neither the amount of the debts nor the value of the estate, so it is hardly likely that he himself made the alternative proposal and it may be noted that Krishnaswami Chetty says 'the boy's father had agreed.' Venkatasubba Rao, J., finds that the suggestion that the 1st defendant was to take half the estate emanated from the 2nd defendant who was anxious to retain his half unencumbered by debt, a fact which shows that the arrangement was not and could not have been a device planned by the widow. There is no doubt at all that the suggestion that the adoptee should pay the debts came first from the other side, the widow. Whether, as D.W. 1 says, the alternative that half the estate should be gifted also came from the widow, or whether the adoptee's father confronted with this claim for payment of indeterminate debts suggested the alternative of an outright gift, does not much matter; but in any case I see no reason to suppose that the adoptee who knew nothing about the figures and values (cf. D.W. 27, p. 653) himself originated the proposal; and the suggestion that he originated it because he wanted an unencumbered estate may be simply met by the fact that these debts were in no possible sense an encumbrance upon the estate. Venkatasubba Rao, J., himself concedes that Pakkam Kuppiah, D.W. 1, gives very clear evidence on this point; and that is the evidence that I prefer to accept. A super-subtle argument has been advanced that this transaction was not a bargain upon which the adoption proceeded, but an entirely independent arrangement. I agree with Krishnan, J., that there is no force in this, even on the defence's own showing. The 1st defendant was concerned about debts which were unlikely to be repaid if she went on with the adoption, so obviously she was not prepared to adopt unless some satisfactory arrangement was made. The 2nd defendant made an offer which she thought satisfactory, and so she adopted him. The 2nd defendant said 'she wished to adopt me on condition of my discharging her debts myself.' When this was read over to him he demurred to the word 'condition,' but, taking the evidence on this matter as a whole, it can only be described as a condition, and not as an independent arrangement. If it had been a spontaneous outburst of generosity on the part of 2nd defendant for which theory there is really no evidence, why was not the whole world told of it? And if the defendant and her brothers felt embarrassed at this compromising gift, surely it would have been natural if not inevitable for them to consult their legal adviser. That they chose on the contrary to keep him in the dark points to the conclusion that it was their own proposal, and a proposal which they felt should be concealed until concealment was no longer possible. Importance seems to attach -to a theory that the 1st defendant may have determined to adopt, and then some time afterwards thought that she might as well get something substantial from the adoptee; the idea being that the original purpose was religious and it subsequently received a slightly secular tinge. I may say here at once, though this conclusion has only been reached after a consideration of all the facts, that I should put the transaction exactly the other way. This lady who made no adoption from 1871 the date of her widowhood till 1886 when on the strength of a forged document she adopted her sister's son, and again took no decisive step till 1914 after she had quarrelled with the reversioner over the 21/2 lakhs which her brothers wanted, was in my opinion entirely actuated by mercenary motives when she proposed the adoption, and the religious motive only made its appearance when it was requisite for the suit. There is no need, to assume that an adoption must invariably import an atmosphere of religion. In a case where after long delay the widow adopted under an arrangement with the adoptee's natural father by which she got absolutely one-fourth of the estate Sankaran Nair, J., remarked, 'In making an adoption under such circumstances the widow would be doing an irreligious act.' Rama Rao v. Narasimha Nayanim Varu : (1915)28MLJ363 . And in Anne Brahmayya v. Chelasami Rattayya (1824) 20 L.W. 503 Ramesam, J., observes 'No widow's adoption can stand scrutiny if her motives are important.' But even assuming (what in fact I cannot assume) that the widow at first proposed this adoption from pure motives, and. other counsels prevailed, I do not find that it affects the question which we have to decide. The vital point to consider is what were the terms on which the adoption was performed on February IS. That on January 15 or thereabouts the gift of half the estate may not have been yet arranged seems to me to be immaterial.

Venkatasubba Rao, J.

108. Finds on the evidence that it unmistakably shows that the adoption, had a distinct origin independent of the terms; the transaction as originally conceived was pure; but as the day of adoption approached the 1st defendant wanted to have an arrangement for the payment of her debts. I would remark in passing that there is no logical reason for separating by an interval of time the idea of adoption and the idea of payment. As soon as 1st defendant thought of adoption she must have known that her power of paying the debts would by that very adopting be materially affected. But even if she only woke up later to the fact that she would be comparatively a poor woman after the adoption, 1 cannot see that it makes the slightest difference. Before she actually adopted, and that is the point, the plan was cut and dried, and the papers bought and prepared for her taking over as absolute owner half her life estate. I may note here that the defence attaches great importance to the circumstance that the EE series of letters concludes at the beginning of January, and 1st defendant was already consulting her vakil about an adoption early in December, when, as Mr. Grant puts it, she went over to the enemy's camp. It is argued that till January she still hoped to get Rs. 21/2 lakhs from Pittapur, and therefore in December her idea of adoption was untainted by any thought of other gain. But if in December she still cherished hopes from Pittapur, why did she go into the other camp, and why did she not take the plaintiff with whom she was still, it is argued, on intimate terms, into her confidence? To my mind the simple answer is that after the interview with the plaintiff in November she knew that she had no hope of the money, so her brothers proceeded to take other measures, and the idea of adoption which may have been mooted even previously took practical shape. Of course it cannot be positively found that a religious motive never at any time crossed her mind; but in my opinion any such passing glimmer was entirely extinguished by material considerations. On the facts I hold that the material considerations were the only substantial motive from the first. She adopted the 2nd defendant in order to obtain half the estate in order to pay off the debts.

109. Much unnecessary mystery attaches to these debts. They were subsequently paid off to the tune of 2,40,000 rupees by moneys obtained on the mortgage of this estate and of property of 1st defendant's brothers from the Raja of Venkatagiri. The Raja's agent D.W. 1 says. that he discharged a registered bond for Rs. 10,000, pro-notes for Rs. 40,000 and there were some pledges of jewels. After liquidating the 1st defendant's debts there was a balance of Rs. 10,000. 1st defendant says (D.W. 8) 'my debts, my brothers had no debts at any time. I never give moneys to my brothers for acquiring properties. They got into debts on account of me. They were acquiring some properties.' 1st defendant's b'other D.W. 27 says 'I was always borrowing for the purpose of getting lands,' and then (p. 651) after detailing-various transactions, 'the 1st defendant discharged most of the above debts. Most of the documents were executed by me or by my brother or Venkayya (the nephew). In the documents we executed there would be no reference to 1st defendant.' Venkayya D.W. 22 says Rs. 25 to 30 thousand debts of 1st defendant were discharged with the Venkatagiri loan (p. S83). As mortgagee the Venkatagiri Raja must have the vouchers for the loans he discharged, and 1st defendant swears that she gave them to him. His treasurer D.W. 28 swears that she did not. I have not the least doubt that the reason why the vouchers are not forthcoming is that they will show that the bulk of the debts are the brothers' debts and not those of the 1st defendant. That is the well-considered finding of the trial Court in para. 112 of the judgment, which I endorse. Venkatasubba Rao, J., finds that when moneys were borrowed by the brothers it was the credit of 1st defendant that was usually pledged. That seems hardly borne out by the passage in the evidence of D.W. 27 which I have just quoted; but in any case 1 should be inclined to think it a distinction without a difference. It is agreed on all sides that the persons who benefited by these debts were the brothers. It may have pleased defendant 1 to help them to the extent of the income from her life estate; and 'to treat the debts as her own debts'. But she can hardly have regarded such debts as morally binding upon her, except in the sense that she engaged herself to help her brothers to the utmost of her power, which, to give the lady her due, she has undoubtedly done. It may have been a natural desire on her part to have the debts discharged by the adoptee on whom they were not legally binding; but I fail to see how it was a proper desire. The payment of debts loses the odour of sanctity when they are defrayed from another's pocket.

110. It seems more than a coincidence that in 19.13 the 1st defendant and her brother were soliciting, deny it as they may, the plaintiff for 21/2 lakhs, and before the next year was out, they had obtained precisely this sum, after the adoption had gone through. This is sought to lie discounted by the circumstance that they first wanted the money in regard to a speculation over the Voratla estate, and i.hen when they got the money they applied it to other purposes. 1st defendant's brother D.W. 27 admits that he required Rs. 21/4 lakhs to be deposited, if the Rani of Tuni agreed. No doubt he says that he had that sum on hand, but he produced no account, and his bare statement is worth nothing. Then he found he had to deposit 7 instead of 21/2 lakhs and gave up the idea; but that does not prove that he did not want the money in November. Besides, the Dewan, P.W. Ill, whose veracity has not been suspected, says that it was for the Tuni business that the money was required.

111. On this view of the facts the law appears to be too plain to afford room for a question of law. The 1st defendant's brothers and nephew who frankly admit that they were battening on her life-estate apprehended that this source of income would be lost to them if 1st defendant died, and she had been ailing since 1912 (p. 463). As D.W. 27 says, she feared she would not live long. It seemed to them only fair that the Pittapur Raja who would get the reversion should make them some recompense. The letter Ex. EE expresses the sentiments of the family. 'As they and myself depend entirely on you and as my estate at some time or other will be made over to you, an order (for pecuniary help) is requested.' The plaintiff refused this help, so the brothers decided to help themselves, making the adoption their instrument to this end. The 1st defendant, as ever since the death of her husband, fell in with their design, and the 2nd defendant was adopted on the understanding that he alienated to the 1st defendant half the estate.

112. Naturally therefore the plaintiff, as sapinda to the widow, refused his consent.

113. An endeavour has been made to discount his refusal because his letter Ex. EE-11 does not display the pure judicial attitude. The analogy between a sapinda in these circumstances and a Court of law may be pressed too far. Obviously if he were a Court he would apply to have the case transferred, because his personal interests must always be involved. But on account of this personal interest it cannot be said that his judgment is vitiated from the outset. So long as he has exercised a reasonable judgment, and is not actuated by motives of fraud or corruption, his decision must be respected. His reasons, as set forth in Ex. EE-11, may be taken seriatim. 'Not with an honest purpose either for the salvation of your husband or for the perpetuation of his line' but

(1) 'bearing spite against me for my not rendering pecuniary help to your brothers' - that in my opinion is true and points to caprice.

(2) 'With a view to put me to loss.' This too I think true. There can be no doubt that 1st defendant who had been on very affectionate terms with the plaintiff (cf. EE-3) was completely estranged when he refused help. The whole style of her letter asking his sanction, and her deliberately fixing the adoption for a date which showed that she did not care whether she obtained that sanction or not, proves that she was largely actuated by spite, one of the motives included in the general term caprice.

114. An adoption may not be made in order to defeat the interest of a sapinda. Vellanki Venkatakrishna Rao v. Venkata Rama Lakshmi

115. This be it noted refers to purpose not to consequence'. It was argued that the plaintiff had no right to give as a reason that the adoption would result in loss to himself. That may be quite correct ; but it is not what the plaintiff writes. He says 'with a view to put me to loss'; not merely 'so as to put me to loss.' And as a sapinda it is his duty to consider the lady's motive.

(3) 'For the selfish gain of all of you.' It does not lie in the defendants' mouths to complain that this should be more specific. They had carefully concealed from the plaintiff the arrangement to which they had come, and it was only, thanks to his Dewan (who died before the trial, page 760) that he knew as much as he did. Now that the arrangement has come to light the objection is fully justified.

(4) You have intrigued with my long-standing enemy and arranged to adopt his son.

116. This may not be a fatal objection in law; but it cannot be said on the other hand that it was a consideration to which the plaintiff was bound to shut his eyes. Assuming as the plaintiff naturally assumed, and the 1st defendant had certainly accepted till January 1914, that he was the rightful son of the late Maharaja, it was very undesirable to have as owner of the important offshoot of the Zamindary, Gollaprole estate, a man who denied the legitimacy of the chief branch. It meant, to put it no higher, very great unpleasantness in the family.

117. Nor did the plaintiff make this a ground for vetoing an adoption altogether; he had been open to having a friendly discussion (para. 3) and probably even then would have been ready to discuss the matter with 1st defendant. It is argued that his prejudice was such that under no circumstances would he ever have consented. This is the region of hypothesis; but suppose the 1st and 2nd defendants had come to him and assured him that they fully recognized his birthright, and at the same time had allayed his reasonable suspicion of corruption, it is quite likely that he would have consented. Para. 4 correctly though roughly states the circumstances which led up to the adoption, and complains that the letter for permission was sent merely as a formality and not with an honest desire to obtain the plaintiff's consent.

118. That is true; but is not in my opinion a valid point of law. So long as defendant had asked plaintiff's consent we are not concerned with her animus in doing so.

119. That the adoption was barred by previous contract with the widow's husband may not have been a good legal point; but his thinking that it was certainly does not vitiate the whole of the plaintiff's refusal.

120. I consider this letter to be a valid refusal of consent on valid ground.

121. I do not consider it necessary to plaintiff's case to invalidate the consent given by the other sapinda, the 2nd defendant's father. But I find that he colluded with the 1st defendant and her brother D.W. 27 in order to alienate half the estate in plaintiff's despite. No doubt he himself neither gained anything nor lost much. Had there been no adoption a moiety of the reversion would have fallen to his share; by the adoption a moiety went to one of his sons; but, and this I consider to have been the motive underlying his consent, after the adoption nothing went to the plaintiff.

122. I infer collusion from the fact that he never informed Krishna-swami Chetty or indeed any one else of the proposed alienation.

123. No doubt if the consent of a substantial majority of the agnates nearest in relationship had been obtained, this Court need not trouble about the motives underlying the adoption. But such consent has not been obtained, and the refusal of consent is on valid ground. In such circumstances the adoption must be held to be void.

124. Considering that adoption is only a method by which a married couple can have a child, it may seem incongruous that a Court of law should concern itself with the underlying motive, and question whether it was caprice or corruption. That incongruity however disappears when the other aspect of adoption is considered, namely a method by which the holder of a life-interest can interrupt the normal succession, and confer an absolute estate. Then the question of caprice or corruption becomes very relevant. So in the leading Madras case The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M.I.A. 397 the Judicial Committee assumes that the Court is seeking for relevant evidence of motive and observes that an inference of proper motive may be founded upon the consent of the sapindas. In Bombay, on the other hand, where what may be called the religious, as opposed to the secular, aspect has been given greater prominence, it has been ruled that the widow's motive is not a relevant consideration, Ramchandra v. Mulgi Nanabhai I.L.R. (1898) Bom. 558. Obviously such a ruling could never have been laid down if The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M.I.A. 397 was an authority in Bombay, a point which was clearly apprehended by the learned Judges who start on the assumption that The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M.I.A. 397 can be distinguished as not referring to the presidency of Bombay : cf. p. 565. In Bombay the consent of sapindas is not necessary, and the motives of the widow are not relevant and in Madras this divergence from Bombay has by no means diminished in the course of time. It might be said that the sanction of sapindas referred to in The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M.I.A. 397 is merely evidentiary, and if for some reason that evidence failed (as in our case where the sapindas are equally divided) presumably the Court would have sought else-where for material on which to ground an inference regarding the widow's motive. Bait by 1876 in Sri Raghunadha v. Sri Brozo Kishoro we find

'It is admitted on all hands that an authorization by some kinsman of the husband is required.... It may be the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption and the effect of an adoption upon the devolution of property as a mere legal consequence' (what I have named the religious as opposed to the secular aspect). But it is impossible not to see that there are grave social objections to making the succession of property...dependent on the caprice of a woman.... It seems therefore to be the duty of the Courts to keep the power strictly within the limits which law has assigned to it (the secular aspect).

125. Then in Veera Basavarajn v. Balasurya Prasada Rao (1918) L.R. 45 IndAp 256 : I.L.R. 41 Mad. 998 : 1918 36 M.L.J. 40 it is observed at page 272:

Division does not affect (the widow's) personal dependence or give her an independent status to alter by her own authority the succession to the estate. (The father's) authorization is therefore essentially requisite to the validity of an adoption by her to her husband. If there is no father the divided brothers take his place. They also have an interest in the protection of the inheritance.

126. In fact the sapindas' sanction which at first seemed no more than evidentiary is now regarded as requisite. Sapindas do not merely affirm the conduct of the widow; they pronounce a decision in their own right as persons having an interest in the protection of the inheritance. And in this view of the law if no such decision has been pronounced owing to an equal division between the sapindas, there can be no adoption and there is no need for the Court to go further and inquire itself into the widow's motive. While if the only view of the law was that to be obtained from The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M.I.A. 397, presumably the Court itself in the absence of evidentiary sanction would consider the widow's motive. But by no view of law in Madras can it be said that the widow's motive is entirely irrelevant, either as guiding the sapindas or, in their absence, as guiding the Court.

127. I may observe that in my opinion the sapinda does not function as the protector of the adoptee but as the protector of the inheritance, taking a longer view than one confined to the personal advantage of a single individual. So I see nothing paradoxical in the plaintiff's objecting to the bargain while he equally objected to the boy who had been chosen. No doubt the bargain injured the immediate adoptee, but it also injured the inheritance for all time : of. judgment of Venkatasubba Rao, J., page 32.

128. This insistence upon the secular aspect has led to a suggestion that this Court should hesitate to pronounce as void an adoption which according to their religion is essential for the future happiness of the adoptive parents; and from this point of view presumably plaintiff was asked in cross-examination whether he did not believe in the efficacy of Hindu ceremonies. But of course that is a region into which the Courts of law do not intrude. We decide that the adoption is one which cannot be upheld by the law of British India, and is ineffective wherever our writ may run. But a pious Hindu may hold, nevertheless, that according to the precepts of his religion the adoption is valid. He may hold that the proper person was selected and the proper ceremony performed, and regard 'the effect of (such) an adoption upon the devolution of property as a mere legal consequence.' We on the other hand 'must keep the power strictly within the limits which the law has assigned to it,' that is to say, the law as embodied by the reports of the Judicial Committee which govern our decision. But these reports are not the authority which will guide a pious Hindu or his religious advisers; for no one pretends that they have attained the character of sacred books. It is quite conceivable that a man whom the judgment of this Court has deprived of all status as an adopted son may nevertheless consider himself such, and may be so considered by his co-religionists. Exactly the same situation may be seen in Europe where a woman who in the eyes of the State and the secular law is duly married, is in the eyes of her church and her co-religionists not married at all.

129. If we held otherwise, and in our opinion those people who faithfully believe that the avoidance of an adoption consigns the adopting parents to perdition, must also believe that our act of avoidance has this dire effect, we might feel constrained to take some such course as that adumbrated in Bhasba Rabidat Singh v. Indar Kunwar (1889) L.R. 16 IndAp 53 : I.L.R. 16 C. 556 and merely avoid the condition while affirming the adoption. But I see no reason for taking a course which, in my opinion, would not follow the law of the Madras decisions. If a sapinda has for good reason refused his consent, it is not for the Courts to go behind his action, by introducing principles of equity which in other circumstances may prevail in England. And, of course, supposing an adoptee to be a man of his word, the result of our decision would be to reaffirm terms which the sapindas had justifiably found to be corrupt; and the sapindas' function as protectors of the inheritance would be gone. The adoptive mother as a device for turning her life-estate into an absolute estate makes a corrupt bargain with a future adoptee. The sapindas decline their assent holding the motive for the adoption to be corrupt. This Court nevertheless affirms the adoption, with the forlorn hope that if it avoid the terms the adoptee may be trusted not to renew the contract by virtue of which alone he gained his position as adopted son.

130. The recent decision of the Judicial Committee in Krishnamoorthi Aiyat v. Krisknamoorthi Aiyar does not in my opinion help the defendants. Besides discussing the validity of a pre-adoption contract by the natural father, a point not now in question, this case is authority for the proposition which surely cannot be described as novel that all bargains between the adopting widow and the adoptee are not necessarily corrupt. Having regard to the particular circumstances of each bargain which may be called in question our Courts will have to decide whether the bargain was or was not so corrupt or capricious as to justify the sapindas in refusing or according their consent. Presumably a wide latitude will be allowed to the judicial discretion of a sapinda in such cases, but nice questions on the border line between pure and corrupt motive may possibly arise in future. No such question, however, arises in this case because the Judicial Committee has indicated one form of contract which is not permissible (and which therefore would justify a sapinda's refusal of consent), i.e., terms which give the widow property absolutely, or give the property to strangers...Such arrangements are against the radical view of the Hindu Law, p. 528.

131. As regards the point taken in the opening paragraphs of the judgment of Krishnan, J., (page 3), whether certain evidence is admissible, I agree with the finding of the learned Judge for the reasons therein set forth. Mr. Grant conceded in the light of that decision that he would not further press the question of the plaintiff's birth, at least in this Court, though reserving his right to raise the whole matter, if necessary, on appeal should the Appellate Court take a different view upon the point of law. Therefore on the question of his birth I find for the plaintiff.

132. For the above reasons I would dismiss this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //