Seshagiri Aiyar, J.
1. One Gurumurthi Subudhi belonging to the Vaisya caste had four sons, three of whom were married and the other was unmarried. All the four sons died during his lifetime, the three married sons leaving behind their widows. In this state of circumstances Gurumurthi adopted a boy for himself the 1st defendant in this suit, and made a will on the 28th June 1909 by which he authorised his three daughters-in-law to adopt a son each. The 2nd plaintiff in this case adopted a son under the authority given to her by Gurumurthi. That boy died. Thereupon she attempted to adopt the 1st plaintiff in this case in November 1911 but was temporarily prevented by injunction from doing so. She subsequently adopted him in 1913.The present suit is brought by the adopted son as 1st plaintiff, and by the adoptive mother as second plaintiff to recover the share of the property bequeathed to the latter's 1 adopted son Gurumurthi. Their allegation is that the 1st defendant gave his consent for adopting the 1st plaintiff, that the boy was selected by the 1st defendant, that the secular ceremony of giving and taking was completed in the presence of the 1st defendant in July 1909, and that the 1st defendant dishonestly prevented the 2nd plaintiff from performing the Dattahomam ceremony.
2. The prayer of the plaintiffs is for a declaration that the adoption of the 1st plaintiff is valid and, in the alternative, that in case the plaintiff's adoption is found to be invalid that the 2nd plaintiff is entitled to the share mentioned in the settlement of Gurumurthi, as the mother and heir of her first adopted son.
3. The defence of the 1st defendant is that he never gave his consent to the adoption and consequently the adoption is invalid. He raises also the plea that notwithstanding the will of Gurumurthi the family remained undivided and that consequently the second plaintiff is not entitled to the share devised to her by his adoptive father.
4. The District Judge found that the first defendant did as a matter of fact consent to the adoption of the 1st plaintiff, that the allegation that the ceremony of giving and taking was completed in July 1909 is not made out, that it was competent to the 1st defendant before the actual adoption took place to withdraw his consent, that the conduct of the 1st defendant amounted to an implied withdrawal of the previous consent given by him, that consequently the adoption of the 1st plaintiff was not valid, but that as the parties became divided in status by the provisions of the will of Gurumurthi, the 2nd plaintiff was entitled to the share allotted to her under the will.
5. The plaintiffs have preferred the appeal for a declaration that the adoption of the 1st plaintiff is valid. The 1st defendant has filed a memorandum of objections questioning the findings against him by the District Judge.
6. I shall first deal with two questions of fact before dealing with the important question of law which was argued at some length before us. The 1st question is whether the 1st defendant consented to the adoption of the 1st plaintiff. There can be no manner of doubt, upon a perusal of the documentary and oral evidence in this case, that the conclusion of the District Judge upon this point is fully supported. I do not propose to deal with the correspondence at any length, as they have been set out fully by the District Judge. I shall only refer to some of the important documents. Exs. XIII, G. XIV and XV which are letters from the brother of the second plaintiff to the 1st defendant show that the 1st defendant really suggested that the adoption of the 1st plaintiff in preference to other boys who were selected for the purpose. Ex. H. written by the 1st defendant to his natural elder brother on the 5th November 1909 refers to the boy's tonsure ceremony and says that the natural father of the boy may be asked to have it performed at Sihmachalam, and that dattahomam will take place in March or April 1910.There are letters from the 1st defendant to the natural father of the boy, Exhibits K and J which prove that the bay was selected by the 1st defendant for adoption. In the school leaving certificate Ex. R. the boy's family name is given as that of the 1st defendant's family, and the 1st defendant is referred to as guardian. Then follow Exhibits XVI and XVII from second plaintiff's brother to the 1st defendant in which reference is made to the fixing of the date for the dattahomam. Exhibits M and L from the 1st defendant to the second plaintiff's brother also refer to the same subject. Matters seem to have gone on amicably until June 1910 when for reasons which have not been disclosed in evidence, the second plaintiff and the 1st defendant fell out. We have no correspondence between June 1910 and November 1911 as to the cause of the ill-feeling.
7. Then we come to the litigation which was started by the 1st defendant. Exhibits I, II, IV, V and W show that he brought a suit for an injunction to restrain the second plaintiff from adopting the 1st plaintiff. The litigation ended unsuccessfully to the 1st defendant. The various documents to which I have referred leave no room for doubt that the 1st defendant actively participated in the selection of the 1st plaintiff for adoption and that he was prepared to have dattahomam performed in March or April 1910, and that this ceremony was put off owing to the intervention of inauspicious events. Further there is the oral evidence of P.W.12, the adoptive mother, which is clear and consistent. This is what she says 'About 4 or 5 years after the death of my father-in-law my adopted son Ramamurthi died. I then asked the 1st defendant to get me another boy for adoption and he promised to get me a boy having given his consent for a fresh adoption.' She then refers to the selection of other boys and says 'the 1st defendant then said that he would get the son of his sister's daughter from Garabanda of the Parlakimidi Taluq. I, my brother Adinarayana and the 1st defendant went to Palasa and the boy's father brought the boy to Palasa on the receipt of the letter from the 1st defendant. I saw the boy and liked him.' This evidence is corroborated by the evidence of P.W.1 who took a prominent part in carrying on correspondence on behalf of his sister, the second plaintiff, with the 1st defendant, by P.W.3 the natural father of the adopted boy. There is no reason for discrediting the testimony of these witnesses, and I therefore agree with the District Judge that the 1st defendant gave his consent for a second adoption by the second plaintiff and that he selected the 1st plaintiff for that purpose. Excepting the bare denial of the 1st defendant, there is no evidence worth the name as against the oral and documentary evidence adduced on behalf of the plaintiffs.
8. The second question of fact which was argued by Mr. Ramesam for the appellants relates to the giving and taking of the boy in July 1909. I felt considerable doubts during the course of the arguments whether the finding of the District Judge that there was no giving and taking is correct. On fuller consideration I have come to the conclusion that we must uphold his finding. The District Judge himself says that but for the fact that in the previous litigation this theory of giving and taking was not set up he would have come to a different conclusion. The oral evidence is strong on the point, and it was not seriously shaken in cross-examination. There is however one document which is entirely inconsistent with this theory of giving and taking in July 1909. Exhibit XV is a letter written to the 1st defendant by the second plaintiff's brother dated 30-10-1909. The writer says 'As we are all satisfied as to Chiranjivi Lakshminarayana you would consider well whether you would send word to his father's house'. If the giving and taking had been completed in July 1909 such a letter would be meaningless. Apparently the boy was taken on trial, and was kept in the house of the 1st defendant as has been done in the case of other boys who were rejected. This document coupled with the omission to state this point in Ex. II the written statement filed by the second plaintiff in the suit of 1911 throws doubt upon the oral testimony given in the case. On the whole, though not without hesitation. I have come to the conclusion that there was no giving and taking in 1909.
9. The conclusion on facts is that the second plaintiff had the consent of the 1st defendant to take the 1st plaintiff in adoption, the 1st plaintiff was taken to the family house of the parties with a view to the religious ceremonies of Dattahomam being performed, and that the 1st defendant subsequently prevented the adopting taking place, and that the second plaintiff took the boy in adoption in spite of this opposition in 1913.
10. The question of the sufficiency of the consent was not seriously argued by Mr. Sarma. Even granting for the sake of argument that the family was undivided, the first defendant as the managing member would be the only person whose assent need be sought for. Further, the other members of the family were all minors in 1909.If the family were divided, the 1st defendant as the nearest reversioner to the estate of the 2nd plaintiff's husband was alone competent to authorise the adoption.
11. On the question whether a consent once given can be arbitrarily withdrawn before it was acted upon, there is no direct authority. There is nothing in the Hindu Law texts on the subject. Therefore, before considering the few cases which were quoted as containing pronouncements which logically conclude the question against the plaintiff, I shall endeavour to examine the reason of the rule.
12. As a widow in a Mitakshara family is incompetent to act sui juris, she can make an adoption only if she is authorised to do so by her husband. To this an exception has been engrafted to the effect that the absence of this authority can be made good by the assent of the sapindas. This power has been given to the sapindas, as they are interested in the property and are expected to see that the spiritual welfare of the deceased kinsman is not jeopardised, Their consent is equivalent to an expression of an opinion that the adoption is necessary for the spiritual benefit of the deceased and for securing the secular management of his properties In Sri Virada Pratapa Raghunatha Deo v. Sri Brozo Kishore Deo (1876) I.L.R. Mad. 69 (P.C.) the Judicial Committee speak of the sapindas as 'councilors and protectors' of the widow. An analogy for this may be found in the consent of the nearest reversioner being regarded as evidence that the alienation was for justifiable purposes. In the one case, the assent is evidence that the widow is not acting capriciously to serve her own ends, and in the other that she is not illegally disposing of property solely to benefit herself. In both the cases, the assent is presumptive evidence of the goodness of the act. It is open in either case to rebut the presumption. It can be shown that the assent to the adoption was obtained by fraud, mis-representation etc., or that it was given from interested or corrupt motives (Sri Virada Pratapa v. Sri Raqhunada I.L.R. (1876) Mad. 69 as it can be shown that the consent of the reversioner to an alienation was not given bona fide. This train of thought precludes me from acceding to the proposition that mere lapse of time without more, or the death of the consenting sapinda, would put an end to the authorisation freely and bona fide granted, It is settled that the fact that a consent to an alienation was given by a reversioner who is dead would not by itself be sufficient to enable the reversioner entitled to succeed to the property to impeach that consent. In my opinion, the same reasoning should govern the assent to an adoption.
13. I can understand the party granting the permission deliberately revoking it for justifiable reason. Sir James Colville says in the case already referred to 'To authorise an act implies the exercise of some discretion whether the act ought or ought not to be done.' Sir Lawrence Jenkins in Bhimappa v. Basava I.L.R. (1905) 29 Bom.400 says 'that the consent required is a matter not of form, but of substance and that 'it implies an intelligent concurrence on due consideration.' Some learned Judges go the length of holding that the assenting Sapinda stands in a fiduciary position to the widow. Ramachandra v. Mulji Nanabhai I.L.R. (1896) 22 Bom. 558 is apparently based on this view. In Narasimha v. Parthasarathy I.L.R. (1918) M. 199. Lord Moulton speaks of the authority given to the widow by the husband as being equivalent to a power of appointment. It will not be an undue stretch of this analogy to characterise the authority vested in the Sapindas as a power to consent to the exercise of the power of adoption. In any view, the consent should be given not capriciously or from corrupt motives, but on a fair consideration of the circumstances which would Justify the exercise of the prerogative. In Ganesh Rathnam Iyer v. Gopala Ratnama Iyer I.L.R. (1880) Mad. 270 their Lordships of the Judicial Committee pointed out that an assent of a sapinda procured by misrepresentation was not sufficient to validate an adoption. This principle would apply mutatis mutandis to the power of revocation which a Sapinda may exercise. I am willing to concede that it is open to a party to revoke a consent before it is acted upon. Further if a Court can pronounce on the validity of the consent, I fail to see why the party himself should not be allowed to reconsider his decision. He can review his opinion just in the same way as tribunals can their decisions. It may be, as argued by Mr. Sarma that the sufficiency of the reason should not be canvassed by the courts. If he acts honestly and puts forward grounds which would satisfy a person of ordinary prudence that he was acting to the best of his knowledge and belief, it is open to argument that courts should not scrutinize his reasons. At the same time, I am unable to assent to the contention of the learned vakil for the respondents that where the party professing to revoke the consent assigns no reasons, his legal advisers can draw attention to materials on which his conclusions might have been based. What the courts are concerned with is not what might have operated on the mind of the revoking party, but what did influence him. The judgment of his legal advisers should not be substituted for the party's.
14. For the above reasons I am of opinion that a Sapinda cannot arbitrarily withdraw his consent and that the question is not whether the courts should find a justification for the revocation, but whether a justification was offered, In the present case the 1st defendant strenuously denied that he gave his consent and he has not put forward any grounds in the written statement or in his evidence to justify the withdrawal of the consent. It would therefore be wrong to permit any speculation regarding what might have led the first defendant to act in the way he did. I must hold that he acted arbitrarily in refusing his assent to the factum of adoption, and that this conduct on his part is not enough to nullify the consent which was voluntarily and bona fide given by him.
15. I shall now proceed to deal with the few cases that were cited in the argument. Mami v. Subbaraya I.L.R. (1911) Mad.145 was strongly relied on by the respondents. In that case, the learned Judges inclined to the view that a consent lapses with the death of the consentor. The reasoning which I have pursued is not quite in accordance with this proposition. I am not saying that it is not open to the Sapindas who are alive at the time of adoption to prove that the assent of the dead man was not obtained honestly. If that was so obtained, I would hesitate to hold that the death of the consentor put an end to the consent. But, I do not want to pursue the matter further. Reliance was placed upon the sentence 'It must, we think, be conceded that, if a Sapinda who has given his consent withdraws it afterwards the widow would not be entitled to act upon such consent and it seems to us to be unreasonable to hold that the consent once given should become irrevocable by the death of the Sapinda giving the consent so as to override the opinion of the Sapindas who subsequenly became entitled to be heard.' I do not think the learned Judge intended to lay down that the withdrawal can be arbitrary. They had not that aspect of the question before them. The observations in Subrahmaniam v. Venkamma I.L.R (1903) Mad. 627 on which the learned Judges in Mami v. Subbaroya I.L.R. (1911) Mad. 145 rely were purely obiter. No question of revocation was considered in the earlier case. Attention may also be drawn to Nagarampalli Kamesam v. Nagarampalli Batchamma (1914) M.W.N. 620 where attempts seem to have been made to explain away the pronouncement in Mami v. Subbaraya I.L.R. (1911) Mad. 145 See also Krishnayya v. Lakshmipathy : (1916)30MLJ265 . There is no pronouncement of the Judicial Committee or of the other High Courts on this question.
16. In my opinion, it would be opposed to all notions of fair play and justice that the party who is clothed with the authority to consent to an act should, after giving his deliberate vote in its favour be permitted arbitrarily and capriciously to resile from it. I therefore hold that the 2nd plaintiff was justified in taking the 1st plaintiff in adoption, not withstandihg the demur of the 1st defendant. In this view, it is unnecessary to consider whether the will of Subudhi brought about a severance of the coparcenary interests among the members of his family. On a minor point argued by Mr. Sarma in the memorandum of objections namely, ground No. 11. I agree with the conclusion of the District Judge.
17. After we reserved judgment Mr. Sarma asked permission to argue a new point of law. Although this was not raised in the Court below we heard him as the question did not involve the consideration of any fresh evidence. The contention was that as according to the plaintiff, the share taken by the 2nd plaintiff's first adopted son was self-acquired property and as on the death of that adopted son the property was inherited by the 2nd plaintiff as mother, the second adoption was incapable of divesting her of that inheritance. Mr. Ramesam repudiated the suggested interpretation of the plaintiff's case. It is needless to go into this question. Granting for argument's sake that the share taken by the first adopted son was his self-acquisition, there is no warrant for the contention that inheriting mother could not be divested of that property by the adoption which she made subsequently. The Guntur Case Veilanki Venkata Krishna Rao v. Venkata Rama Lakshmi I.L.R. (1876) Mad. 174 is authority for the proposition that a mother succeeding as heir to her son would be divested by her adopted son of the inherited property. There can be no distinction in principle between property owned as ancestral or which is taken as self-acquisition. The case in Mussarnmat Bhooban Delia v. Ram Kishore Acharj Chowdury (1865) 10 M.I.A. 279 related to property which vested in the widow of the adopted son. In the present case the first adopted son died unmarried. We must therefore overrule this contention.
18. For the above reasons, the decision of the District Judge in so far as it dismisses the suit of the 1st plaintiff must be reversed and his decree should be modified by declaring that the 1st plaintiff as adopted son is entitled to the share decreed to the 2nd plaintiff. The appellants are entitled to their costs in this and in the Court below and the costs will be taxed on the value of the property decreed to the 1st plaintiff.
19. I agree.