1. The plaintiff denied the alleged adoption and it was for the defendant to show that there was a valid adoption. If Lakshminarasayya did not predecease his brother, then unless the adoption by the brother's widow was made in his life-time, it was bad at any rate in the absence of the consent of Lakshminarasayy's widow. It was, therefore, for the defendant to show that the adoption was made at a time when the widow was competent to adopt after the death of Lakshminarasayya's widow, or that it was made with the consent of this widow and validated by such consent. We must, therefore, call for a finding as to whether the adoption was made after the widow's death or in her life-time, and if in her life-time whether her consent was obtained, and was sufficient to validate the adoption.
2. Fresh evidence may be taken.
3. The finding must be submitted within six weeks. Seven days will be allowed for tiling objections.
4. This second appeal again coming on for hearing on Friday the 4th day of December, 1908, on receipt of a letter from the District Judge of Godavari for the transfer of A.S. No. 482 of 1902 from the file of the Additional Subordinate Judge's Court of Godavari at Rajahmundry to that of the Subordinate Judge's Court of Kistna at Ellore, the Court made the following.
5. In addition to the finding called for it should also be found whether, if the adoption took place after Lakshminarsayya's death, it took place with the consent of his widow.
6. In compliance with the above orders the Subordinate Judge of Ellore submitted the following.
1. The High Court called for findings on two issues, the first of which was whether the widow was competent to adopt at the date of the adoption of the 2nd defendant and whether, if the adoption took place after Lakshminarasayya's death, it took place with the consent of his widow.
2. I shall deal with both the issues together. Nidamarthi Narasaraju and Nidamarthi Lakshminarasayya were brothers. According to the plaintiff the two brothers were undivided, and on the death of Narasaraju, Lakshminarasayya became the sole owner by right of survivorship. On the contending defendants' behalf the allegation was that Lakshminarasayya died first so that on his death Narasaraju became the owner of the properties.
3. If the contention of the 2nd defendant were true, Narasaraju being the last male-holder any adoption made by his widow China Peramma would be valid in case she had permission or authority from her husband or his gnatis. In the present case it was alleged that China Peramma adopted the 2nd defendant with the consent of the gnatis and, therefore, such an adoption ought to be held valid. If on the other hand the plaintiff's contention were accepted as true, on the death of Narasaraju, the property having vested in his undivided brother Lakshminarasayya, the widow China Peramma became a mere maintenance holder and she Could not as such adopt, From the evidence already recorded it is clear that the two brothers Narasaraju. and Lakshminarasayya never became divided. Thus the main question arising for decision will be whether Narasaraju or Lakshminarasayya died first.
4. The plaintiff and the 2nd defendant adduced oral evidence in support of their respective contentions. But the deposition of the present 2nd defendant given in O.S. No. 93 of 1856 on the file of the District Munsif's Court of Ellore was exhibited at this trial. Therein he admitted that Narasaraju died first. Apart from the oral evidence which, however, appeared to be unsatisfactory, there is Exhibit--J from which it is clear that Narasaraju died first.
5. According to the 2nd defendant, Narasaraju's widow China Peramma adopted him with the consent of the gnatis. The question then arising for decision will be whether she had the consent of the widow of Lakshminarasayya. No specific evidence was let in on this point. The 2nd defendant's pleader argued that the two widows China Peramma and Ramanamma, on the death of their respective husbands, divided the properties between them and continued to hold and enjoy them separately and that at such a time the adoption of the 2nd defendant by one of the widows, China Peramma, was made with the consent of the gnatis and the other widow raised no objections whatever and, therefore, the consent of Ramanamma must be implied from her silence.
6. It does not appear that Ramanamma raised any objection either at the time of the adoption or afterwards. It does not appear that she sued to have the adoption set aside. That the adoption did take place there can be no doubt, because, besides the oral evidence, there is admitted documentary evidence in the suit which shows beyond all doubt that the 2nd defendant was really adopted by China Peramma. His name was also entered in the accounts and he alone was leasing out the lands as adopted son. Upon the documentary evidence alone it can be fairly said that the 2nd defendant was adopted by China Peramma.
7. The two widows were living apart from each other enjoying separate portions of the property, and the adoption having taken place with the consent of the gnatis and at such a time no objections having arisen on the part of the widow Ramanamma, it may fairly be presumed that she gave her consent to the adoption made by China Peramma. No doubt specific evidence as to the actual consent is not forthcoming, but at this distance of time it will not be possible for the 2nd defendant to prove consent by evidence. He was barely nine or ten years old on the date of adoption and the adoption itself took place about 30 years ago. Further the 2nd defendant who was adopted by one of the widows was after all one of the reversioners to succeed to the estate of the two brothers on the death of the two widows. It may, therefore, be presumed that the widow of the elder brother made the adoption, and the widow of the younger brother kept quiet without raising her objections. Seeing that the adoption cannot but be true as appearing from the documentary evidence filed in the suit and there being no evidence whatever that Ramanamma either at the time of the adoption or at any time afterwards raised any objections to this adoption, it may be fairly presumed that there was her consent for this adoption. In this view I will find that the adoption was validly made.
8. As for the question whether the widow was competent to adopt, the evidence is to the effect that the gnatis gave permission. Although the properties vested in Lakshminarasayya on the death of Narasaraju, still, in the circumstances of this case, seeing that the two widows enjoyed the properties separately and seeing that China Peramma was the widow of the elder brother, it may, I think, be found that with the consent of Ramanamma, the widow of the younger brother, the widow of the elder brother adopted a boy who would ultimately succeed to the estate. That boy was the 2nd defendant. It does not appear that Ramanamma was in any manner inclined to adopt any other boy.
9. Thus Ramanamma by her conduct offered no opposition to this adoption and, therefore, in the circumstances, her silence might be taken to be consent. It was further in the interests of Ramanamma, if she did not like the adoption, to have objected to the adoption. The adopted son latterly exercised acts of ownership as adopted son and Ramanamma seems to have kept quiet. Such acquiescence on her part amounts to consent.
10. Thus the properties held by the two brothers, on the death of one, became vested by right of survivorship in the other. The adoption of the 2nd defendant made to the deceased brother under the authority given her by gnatis, put an end to the survivorship. In these circumstances I find both the issues for the 2nd defendant and against the plaintiff.
7. This second appeal coming on for final hearing after the return of the finding on Thursday the 16th day of September, 1909, and having stood over for consideration till this day, the Court delivered the following.
8. It has been held by the Privy Council in Mussammat Bhoobun Moyee Debia v. Rama Kishore Acharj Chowdhry 10 M.I.A. 279; Vellanki Venkata Krishna Rao v. Venkata Rama Lakhmi 4 I.A. 1 Padmakumari Debia Chowdhrani v. The Court of Wards 8 I.A. 229; Thayammal v. Venkatarama 10 M.k 205 and Manik Chand Golecha v. Jaggat Settani Pran Kumari Bibi 17 C.b 518 that an adoption made by a widow to her husband after their son had died, leaving a widow in whom the estate had vested, was void and did not take effect when, after the death of the son's widow, the estate devolved by inheritance on the adoptive widow herself. These decisions of their Lordships have been interpreted by Full Benches of the Bombay and Calcutta High Courts in Ramkrishna v. Shamrao 26 B.k 526 and Manikyamala Bose v. Nanda Kumar Bose 4 0. L.J. 357 as meaning that a widow's power is absolutely at an end once the estate has vested in the heir of her deceased son, and is not revived even if the widow herself afterwards succeeds to the estate. If the widow having once lost the right to adopt when her son's inheritance devolves on another does not re-gain it on becoming herself the owner of the estate--if, that is to say, she cannot in these circumstances by her consent as owner, validate an adoption made by her as widow, it would seem to follow that the consent of the person on whom the estate has devolved by inheritance from the son is ineffective to validate an adoption made by the widow, and this was apparently the view taken by Jenkins, C.J. in Anandibai v. Kashibai 28 B.k 461 This was expressly decided by a Full Bench of this Court in Annamah v. Mabbu Bali Reddy 8 M.H.C. 108 where it was held that, when after the son's death the estate had vested by inheritance in his grandfather, and the grandfather signified his consent to the widow's adoption by himself giving the boy in adoption, his consent as owner did not render the adoption valid.
9. In the present case we have to deal with an estate which was vested in two undivided co-parceners A and B, and on the death of A passed by survivorship to B, and on B's death descended to his widow; and the question is as to the effect of an adoption to A made by A's widow with the consent of the Sapindas and also, it is alleged, with the consent of B's widow. Now it is clear that A's widow might, with proper consent, have validly adopted a son to A during the life-time of his surviving co-parcener B, Sri Virada Pratapa Raghunada Deo v. Brozo Kishore Patta Deo 25 W.R. 291 and Chandra v. Gojarabai 14 B.c 463 but in the last case it was held that such an adoption if made after the death of the surviving co-parcener and the vesting of the estate in his widow could not divest the estate, as of course it would if valid.
10. Then as to the alleged consent of B's widow, the question whether the consent of the person in whom the estate had vested by inheritance would validate such an adoption was left open by a Full Bench of the Bombay High Court in Vasudeo Vishnu Manohar v. Ramchendra Vinayak Modak 22 B.k 551; in Payapa Akkappa Patol v. Appanna 23 B.k 327 it was held that it would, but this was before the decision of the Full Bench in Ramkrishna v. Shamrao 26 B.k 526 that a widow cannot adopt when the estate comes to her by inheritance after it has devolved on her son's widow; and in Anandibai v. Kashibai 28 B.k 461; Jenkins, C.J. seemed to think, as already observed, that in such a case consent would be ineffective. This was also the decision in Annamah v. Mabbu Bali Reddy 8 M.H.C. 108 by which we are bound. If in these cases consent is inoperative, there does not appear to be any sound reason for applying a different rule in the case of an adoption by the widow of a co-parcener who has lost her right to adopt independently of such consent by reason of the estate having devolved on the widow of the last co-parcener. In this view it is unnecessary to consider whether the evidence justifies the presumption drawn by the lower Court that the widow in whom the estate was vested duly gave her consent.
11. In the result the appeal is allowed and the plaintiff's suit decreed with costs throughout.
12. I do not think this is at all a clear case but I am not prepared to differ.
13. If the power to adopt is at an end, then on the authorities no consent can revive it, but if the only obstacle to the divesting of Ramanamma's estate is the fact that it had vested in her and was not in Peramma at the time of the adoption, the power to adopt being still alive, then I find some difficulty in seeing why the obstacle should not be removable by consent. And it is not very clear to me that the power to adopt is at an end in this case within the meaning of the Privy Council rulings. In all the cases cited the deceased had a son natural or adopted before the proper limit was reached: nevertheless seeing that in Raja Vellanki, Venkata Krishna Row v. Venkata Rama Lakshmi 4 I.A. 1 the fact that the adoption is in derogation of another estate is stated as the feature which distinguished that case from Musumat Bhoobun Moyee Debia v. Ramkishore Acharj Chowdhry 10 M.I.A. 279, I cannot say that the rule which my learned brother proposes to apply could not be deduced from the decisions to which he has referred.
14. I, therefore, though with some hesitation, agree in making the decree which he proposes to make.