1. The second question referred to us for decision is:
Whether the assent of a son to an adoption by his mother is sufficient assent under Hindu Law to validate the adoption where there is no change in the circumstances and there are no other grounds for the next presumptive reversioner to object to the adoption when actually made.
2. In this Presidency the law is well settled that a Hindu widow, not having her husband's permission may, if duly authorized by his kindred, adopt a son to him (see Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397). It is also settled that the condition regarding the consent of the husband's kindred is sufficiently satisfied if the consent of the nearest sapindas--even if there be only one such--be obtained (Subrahmanyam v. Venkayima : (1903)13MLJ239 and Veerabasavaraju v. Balasurya Prasada Rao ) they being by virtue of the relationship the most competent advisers of the widow and the proper judges of the propriety of her act in making the adoption. As observed in the referring order, under the Hindu Law, the mother is under the protection of the son, who is the nearest sapinda after the husband's death. It follows that prima facie his assent is sufficient to validate an adoption by his mother. According to the theory underlying the law of adoption this assent of the son can be acted upon only after his death. Does the fact that the son is not alive when the adoption is actually made render his consent ineffectual and in consequence, the adoption invalid?
3. It is argued on one side that the son's consent is valid as he is the natural guardian and protector of the widowed mother and is the person most interested in the main purposes which constitute the necessity for the adoption, namely, the performance of his sradh and the perpetuation of his family. On the other side it is contended that the consent contemplated is that of the sapindas whose presumptive or reversionary rights would be defeated by the adoption and not of the deceased son as regards whom no question of endangering proprietary interests could possibly arise. In Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 wherein the validity of a widow's adoption with the consent of her husband's kindred was authoritatively laid down, their Lordships of the Privy Council observed that:
the assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption.
That the rights of property should also be taken into account was for the first time expressed in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo I.L.R. (1876) M. 69 : L.R. 3 IndAp 154. At page 83 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 arc 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 Court to keep the power strictly within the limits which the law has assigned to it.
4. In Veerabasavaraju v. Balasurya Prasada Rao the Board after stating that in the judgment in the Ramnad case some expressions were used which might imply that the question of reversionary interest formed only a secondary consideration in determining what sapindas' assent was primarily requisite observed that rights to property cannot be left out of consideration in the determination of the question. It is noteworthy that in the latter two cases the language of the Board is guarded and their Lordships do not say that proprietary rights form the paramount consideration. The necessary result of every adoption is to divest the sapindas of the interest of the widow's husband which devolved on them; this circumstance by itself should not therefore be regarded as conclusive in determining the validity of the consent on the strength of which the adoption is made. Having regard to these circumstances, the observations of the Privy Council adverting to the importance of proprietary rights in relation to the validity of sapindas' consent can only be understood to mean that such consideration should not be lost sight of but should be given due weight in determining what sapindas' consent would be sufficient.
5. That the ultimate effect of an adoption on the reversionary interest of the sapindas does not form the primary consideration in determining the question may be gathered from the views of the Privy Council regarding the nature of the evidence of consent required in cases of this description. The Ramnad case laid down that 'there should be such an evidence of consent 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 corrupt motives.' In Velanki v. Venkatarama the Board observed:
Their Lordships think it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow and that all that which this Committee in the former case intended to lay down was that there should he such proof of consent on the part of the sapindas as should he sufficient to support the inference that the adoption was made by the widow not from capricious or corrupt motives in order to defeat the interest of 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.
6. This proposition was referred to with approval in Veerabasavaraju v. Balasurya Prasada Rao . It follows that the decisive consideration in such cases is whether the adoption was a proper and bona fide act; and in coming to a conclusion on that point, the fact that the sapinda giving the consent had no proprietary interest to lose or that it will prejudicially affect the property rights of the nearest reversioners at the time of the adoption will merely be an important element for consideration.
7. The crucial test being as stated above, the consent of the son who is the nearest sapinda would be sufficient if the circumstances showed that the adoption was made by the widow in the proper and bona fide performance of a religious duty, and the real motive which actuated her was the conferment of spiritual benefit on her husband. The adoption would not be vitiated merely because the son had no proprietary interest to lose by the adoption when actually made or it tended to defeat the reversionary rights of other sapindas. If, however, the evidence., bearing on consent leads to the conclusion that the motive which actuated the widow in making the adoption was to defeat the reversionary interest of the sapindas, then the adoption would necessarily be invalid. These being the true considerations, it would follow that the death of the son will not affect the validity of his consent or of the adoption based on it.
8. No authority has been brought to our notice in support of the contention that the assenting sapinda should be alive at the time of the adoption. The question was raised before the Judicial Committee in Krishnayya v. Lakshmipathi , but their Lordships refrained from expressing any opinion on it. In Suryanarayana v. Ramadoss I.L.R. (1917) M. 604 : 1917 34 M.L.J. 87 Seshagiri Aiyar, J., with whom Ayling, J., concurred, held that the death of the consenting sapinda will not put an end to a consent freely and bona fide granted. To the same effect is the decision in Anne Brahmayya v. Chelasami Rattayya (1924) 20 L.W. 503. In that case Ramesam, J., observed:
When the interval is short, the death of the sapinda may not matter; but a sapinda's assent is not to be pocketed and used long after it is given when entirely different considerations as to the expediency of the adoption may apply.
9. In Ammanna v. Satyanarayana I.L.R. (1925) M. 636 : 1925 51 M.L.J. 426 Odgers and Viswanatha Sastri, JJ., upheld an adoption made by a widow after the death of the assenting sapinda and approved by the sapinda living at the time of the adoption. Viswanatha Sastri, J., however, was prepared to go to the length of holding that such subsequent approval was not essential. Vide his observations at page 649 to the effect that
in my opinion the trend of these decisions is that when the consent is given by the father-in-law who happens to be the nearest saptnda then living, his death before the adoption is made would not ipso facto revoke the consent; and that such a consent would come to an end only if the circumstances had materially changed after his death,
10. If, as we have already pointed out, the determining factor is the object of the widow in making the adoption and the considerations based on the loss of proprietary rights of the reversioners merely serve as aids in appreciating the true nature of the consent and the circumstances relating to the adoption, it is difficult to perceive the necessity for the subsequent consent or approval of the reversioners living at the time when the adoption is actually made. The reservation that the consent should be acted upon with reasonable promptitude and that circumstances should not have undergone a material alteration would seem to meet the ends in view irrespective of the question whether the assenting sapinda was dead at the time of the adoption or whether those living then approved it.
11. The doctrine of subsequent approval was suggested in the decision in Mami v. Subbarayar I.L.R. (1911) M. 145 : 24 M.L.J. 484. It may at once be stated that it is not an authority for the extreme view that the death of the assenting sapinda necessarily puts an end to the efficacy of the consent. The case merely decided that the adoption on the basis of the consent of a deceased sapinda would be invalid 'if not approved of by the persons who are the nearest sapindas at the time of the adoption'. A close examination of that decision shows that the Judges were considerably influenced by the fact that the death of the assenting sapinda would make his consent irrevocable. It is not evident why that circumstance should destroy the efficacy of the consent. Its validity has to be tested solely by the consideration laid down in the judgments of the Privy Council already referred to and if it satisfies them the consent should be allowed to have full operation irrespective of the fact that the assenting sapinda had died. In dealing with the argument that adoption within a reasonable time after the death of the assenting sapinda would be valid the learned Judges observe:
No doubt it may not be necessary that the consent should be given actually at the time the adoption is made, but it seems to us that at any rate a consent previously obtained from a deceased sapinda cannot be efficacious to validate an adoption which is not approved by the persons who are the nearest sapindas at the time the adoption is actually made.
12. This pronouncement is halting and indecisive. In Suryanarayana v. Ramadoss I.L.R. (1917) M. 604 : 1917 34 M.L.J. 87 this case was considered by Seshagiri Aiyar, J., with whose comments we agree (see also Ammanna v. Satyanarayana I.L.R. (1925) M. 636 : 1925 51 M.L.J. 426).
13. For the above reasons, the answer to the second question referred to us is in the affirmative.
14. In view of our answer to the second question, we do not think it is necessary to consider the first question.