1. I have had the advantage of perusing the judgment of my brother Venkatasubba Rao, J. I will add a few reasons for agreeing with it.
2. In the first place I agree with him in thinking that the phrase ' express authority of the husband ' so often used in decisions means nothing more than an affirmative indication enabling the widow to adopt, which can be traced to the mind of the husband. The word ' express ' is used in opposition to the state of the law in Bombay where non-forbidding of adoption by the widow is taken as equivalent to authorisation. In Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo (1876) I.L.R. I M 69 (P C) we have got the words ' express authority' in two places at page 77, and at page 78 'express permission'. The Judicial Committee then referred to Justice Holloway's opinion in the Ramnad case and to the manner in which it was dealt with by the Judicial Committee. They said:
It pointed out that on the question--who are the kinsmen whose assent will supply the want of a positive permission from the husband, etc.
3. Thus it is clear that the word ' express ' is not used in opposition to the word ' implied ' and an authority can be implied from the facts of a particular case. In Subbarayar v. Subbammal I.L.R. (1898) M 497 their Lordships say
In the circumstances of the case the direction in the will most clearly implied that datta homam should precede the upanayanam.
4. Secondly, there are two essentials requisite for the validity of an adoption: (1) Giving and taking, (2) Datta homam (only in certain cases). Where only the giving and taking is complete but the case is one which requires datta homam, it may be said that process of adoption has begun but is not completed until datta homam is performed. In such cases it has been held that the datta homam may be performed later on even if both the natural parents of the boy are dead. [Ven-kata v. Subhadra I.L.R. (1884) M 548]. It is true that in the ceremony of datta homam there is always a formal giving and taking even if previously there had been an informal giving and taking and because of this Mr. Satyanarayana contends for the respondent that the first giving and taking is nothing and the second giving and taking is everything and it cannot be said that the process of adoption has begun, for, he asks, if the first giving and taking has any significance why should it be repeated in the datta homam ceremony? The reply to this argument is that the repetition is a purely formal matter and if the giving and taking in the course of datta homam is the only real giving and taking, it could not be held that the datta homam can be performed by a relation after the death of both the parents as has been held in Venkata v. Subhadra I.L.R. (1884) M 548 for an orphan cannot be given away. It follows therefore in all cases where the process of adoption has begun by a giving (and taking in the lifetime of the adopting father there is a clear indication of his desire and no further authority is needed to enable the widow to adopt. It should be necessarily implied in such taking by the adoptive father. In the practical application of this rule no doubt some caution will have to be observed. There may be cases where a boy is brought merely for trial, that is, kept on probation. It cannot be said in such cases there is a complete giving and taking on account of the temporary parting of the parent's custody. But where it has been settled that the boy should be adopted 'and his custody has been parted with by the parents finally and a date is fixed for the, datta homam ceremony and a few days before that the adopting father dies by a sudden attack of colic or other disease and nothing has happened after the bringing of the boy to show that the adoptive father has changed his attitude towards the boy, such facts constitute a cogent indication of the husband's wishes which enable the widow to adopt. It is said that this point was not raised in the Courts below. In the similar case of Subbarayar v. Subbammal I.L.R. (1898) M 497 also, there was no issue but on the ground that all the facts were known and there was no prejudice, their Lordships affirmed the decree on the ground of a taking and acceptance at a different date from that found by the Lower Court. In the present case the facts were pleaded in the written statement and found by the Courts below.
5. I agree with the order proposed by my learned brother. The memo of objection is dismissed. No order as to costs.
Venkatasubba Rao, J.
6. The plaintiff is the daughter's son of one Kurmanadham, deceased, and he files the suit for a declaration that the 2nd defendant has not been validly adopted by the Ist defendant, the widow of Kurmanadham.
7. The defendants relied upon oral authority said to have been given by Kurmanadham some four hours previous to his death on the 10th of June, 1916. Both the Lower Courts have disbelieved the specific case set up and have allowed the plaintiff's claim. This is a finding of fact and we cannot interfere with it in second appeal. On behalf of the defendants, however, the case has been presented to us from a somewhat different standpoint. In regard to the facts upon which depends the question of law raised, there is no dispute. The 2nd defendant was living with his natural father at Cocanada and Kurmanadham was a resident of Anakapalli. On the Ist of June, 1916, the boy was taken from Cocanada to Anakapalli with a view to his being adopted. Three letters passed between Kurmanadham and the father of the boy between the 2nd and the 7th of June, 1916, which show that in respect of the contemplated adoption all the terms were settled. An auspicious day was chosen and the adoption was fixed for the 16th of June, 1916. Unfortunately, in the meantime, on the 10th of June, Kurmanadham died. The ceremony of adoption was performed on the 24th of June, the boy was formally given and taken and there was also the performance of datta homam.
8. These facts are clearly set forth in the written statement of the defendants and are found to be true by the learned District Judge. We are not therefore called on to deal with the evidence in the case, the only question to be decided being, what is the legal effect of the facts found. Mr. Lakshmanna, the learned vakil for the defendants, puts his case in two ways. He says first, from the facts found, the husband's consent to his wife making the adoption may be implied. Secondly, that the secular act of giving and taking the boy having been completed in the lifetime of the husband, the religious act of datta homam essential to complete the adoption may be performed subsequent to his death.
9. If either of these contentions is accepted, the appeal must be allowed and in my opinion both these propositions are sound.
10. In regard to the first contention, the question resolves itself into this: Can a husband's consent or authority be implied from his conduct? If in law it can be implied, the facts of the present case lead almost to an irresistible conclusion that the wife did have the necessary authority. While the law says that the widow must have her husband's consent, it does not restrict the manner in which that consent may be given. Whether consent was given is a question of fact and I fail to see why it cannot be implied from conduct. The plaintiff's learned vakil points out that what is recognised in the decisions is the husband's ' express consent '. It is undoubtedly true that in the decisions of the highest authority, the expression used is ' express consent'. But what does that expression mean? In the leading case on the subject, The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M I A 397, the Privy Council point out how the various schools in India accepting the same text as their authority, have developed different rules of law in regard to the widow's power of adoption. Their Lordships observe:
All the schools accept as authoritative the text of Vasishta; which says; 'Nor let a woman give or accept a son unless with the assent of her lord.' But the Mithila school apparently takes this to mean that the assent of the husband must he given at the time of the adoption, and therefore that a widow cannot receive a son in adoption, according to the Dattaca form, at all. The Bengal school interprets the text as requiring an express permission given by the husband in his life-time, but capable of taking effect after his death; whilst the Mayukha, Kaustubha, and other treatises which govern the Mahratta School, explain the text away by saying, that it applies only to an adoption made in the husband's life-time, and is not to be taken to restrict the widow's power to do that which the general law prescribes as beneficial to her husband's soul.
11. It is now settled that in Southern India as in Bengal, the husband's assent is required and in the passage quoted above that assent is described as ' express permission '. These words are used to mark the contrast between the law as accepted by the Bengal school and the Mahratta school. The Mahratta doctrine proceeds upon the view that the adoption being beneficial to the husband's soul, where he has not intimated his prohibition, assent may be assumed. In Bengal and Southern India, on the other hand, assent cannot be inferred from the mere absence of prohibition; something more is required: there must be positive or affirmative consent given by the husband. Putting it in other words, according to the Mahratta school, if there is no dissent, assent may be assumed. In Bengal and Southern India the absence of dissent or prohibition is not sufficient but positive assent must be proved. If the judgment of the Privy Council in The Collector of Madura v. Muthuramalinga Sethupathi (1868) 12 M I A 397 is carefully read, it will be seen that it is to bring out this distinction their Lordships use the expression 'express consent'. This distinction is of great importance and cannot be ignored when the law obtaining in different provinces is under discussion. Now it will be observed that in the same judgment besides the word 'express,' two other words are used in this connection, namely, 'formal' and 'positive'. The expression 'express consent' means nothing more than 'positive consent'. What then is the true rule deducible? If from the circumstances you can infer that the husband did not prohibit the adoption and nothing more, that is not sufficient; but if you can infer that he assented to or authorised the adoption, that is clearly sufficient. The following passage in West and Buhler, 3rd Edn., at page 957 supports my view:
Any unequivocal indication of his assent would probably be taken as equivalent to an express command.
12. In this case the only reasonable inference from the proved facts is that the husband gave his consent to his widow making the adoption and on this ground 1 would hold the adoption to be valid.
13. In regard to the second contention of Mr. Lakshmanna, it is clearly borne out by authority. Venkata v. Subhadra I.L.R. (1884) M 548 is the converse of the present case. It was the natural father of the boy that died after the gift and the acceptance. At the datta homam which was performed subsequent to his death the elder brother of the boy made the formal gift. The learned Judges holding that there was giving and taking in the lifetime of the natural father, upheld the adoption on the ground that the religious rite was essential only to complete the adoption. Subbarayar v. Subbammal I.L.R. (1898) M 497 is however a parallel case.The boy was given and taken and subsequently the adoptive father died. The ceremony of datta homam was performed by his widow and the adoption was held valid. The principle underlying these cases is, that giving and taking is of the essence of the adoption and the religious part of it can be deferred to a subsequent period. I am prepared to follow these cases and on this ground also 1 confirm the adoption.
14. The result is, the appeal is allowed and the plaintiff's suit is dismissed. The defendants will have their costs of this appeal, but the parties will bear their own costs in the Lower Courts.