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(Popuri) Murahari Brahma Sastri and anr. Vs. Chilikuri Sumitramma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1934Mad191
Appellant(Popuri) Murahari Brahma Sastri and anr.
RespondentChilikuri Sumitramma and ors.
Cases ReferredVisvasundara Row v. Somasundara Rao
Excerpt:
.....the consent of all those whose possible and reversionary interests would be defeated by the adoption 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. the reference to a 'family council' gave rise to some doubt whether, where there were agnatic relations closely related to the deceased, the assent of those standing in a remoter degree was either necessary or sufficient the consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honost judgment on the matter. somasundara rao air 1920 mad 451, and stated that although in my opinion..........be the main factor in determining the validity of an adoption, then the argument that the deceased husband's daughter should be consulted has obviously not much force; but what is contended is that the protection of his estate for his heirs should also be considered by the widow in making the adoption and, if so, the adoption without consulting the daughter, should be held to be invalid. admittedly there is no authority either of hindu law texts or of any decision in support of this proposition; what authority there is, is against it, in visvasundara row v. somasundara rao (i) the question arose whether a daughter's son is entitled to be consulted regarding an adoption by a widow and it was held that as he is not agnate he has no right to be consulted.4. as all the arguments now advanced.....
Judgment:

Madhavan Nair, J.

1. Defendants 1 and 2 are the appellants. The appeal arises out of a suit instituted by the plaintiff for a declaration that the allegd adoption of defendant 1 by defendant 2 is not true or valid. One Popoori Ramakrishnayya died in or about 1900. The plaintiff is his daughter by his first wife. After the death of the plaintiff's mother, Ramakrishnayya married defendant 2. At his death she had not attained puberty. Defendants 3 and 4 are the divided brothers of the deceased Ramakrishnayya and his nearest gnatis. Defendant 1 is the son of defendant 4. On 10th July 1923 defendant 2 sent a registered post card Ex. 3 to defendant 3 requesting him to give her written authority to adopt. This letter was refused by him. On 26th August 1923 she sent another registered post card Ex. 4 to defendant 3 making the same request. This was also refused. On 20th September 1923 the registered post card Ex. 5 was sent by her pleader making the same request. This was also refused by defendant 3. On the same date as Ex. 3 defendant 2 sent Ex. 7 to defendant 4 asking his permission to adopt. On 25th November 1923 he gave the required consent for the adoption by executing Ex. 2, the deed of authority. On 17th April 1924 defendant 2 adopted defendant 1 and executed in his favour the adoption deed Ex. 1. Thi3 was attested, amongst others, by Popoori Sastrulu and Popoori Gangathara Sastri, two reversioners of the deceased Ramakrishnayya. The evidence discloses that two other reversioners of Ramakrishnayya, Popoori Sambayya and Popoori Ramtharakam, were also in existence at that time. The plaintiff denied the factum of the adoption and contended that even if true it was invalid. Holding that the adoption was proved, the learned Judge held that it was invalid for two reasons : (1) that the plaintiff who was the nearest reversioner was not consulted, and (2) that even if plaintiff's consent was not necessary, when defendant 3 had not given his consent the adoption should not have been made on the sole consent of defendant 4 without convening a meeting of the other kinsmen and taking their consent. Ground 2 is more elaborately stated in para. 27 of the judgment as follows:

The second reason for holding that defendant 1's adoption is invalid is that, even assuming that plaintiff was not one of those to be consulted, defendant 2 should have convened a gathering of kinsmen when she found that of the two neatest agnates one of them only was prepared to give his consent. As remarked in Brahmayya v. Rattayya : AIR1925Mad67 a majority of the kinsmen must consent and one of two cannot form a majority. If defendant 3 capriciously withheld his consent, defendant 2 should have taken the consent of the next reversioners who are said to be one Popoori Sambayya and one Popoori Ramatharakam.

2. In appeal Mr. Varadachari argues: (1) that in law the consent of the plaintiff is not necessary for the widow to make a valid adoption, and (2) that the evidence shows that before making the adoption she obtained the consent of a majority of the kinsmen or such consent of the kinsmen as is sufficient to show that her act of adoption was done in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive, see Collector of Madura v. Mootoo Ramalinga Sethupathy (1867-69) 12 M.I.A. which he contends is all that is required in law to make the adoption valid in the absence of the husband's authority. In addition to the grounds found in his favour by the lower Court, Mr. Somasundaram on behalf of respondent 1 urged before us that the authority given to the widow by defendant 4 is too general to be valid and that the evidence shows that the consent was procured by corrupt motives. The latter ground though taken was not pressed as the evidence in support of it was stated to be weak, and therefore need not be dealt with. The ground that the authority is too general is also unsubstantial. In Suryanarayana v. Venkaiaramana (1903) 26 Mad 681, the decision referred to in support of this contention, the assent of the sapinda obtained by the widow was for the adoption of 'any boy at any time' and this was not acted upon for 19 years. The assent given by defendant 4 by Ex. 2 is not to adopt any boy whom the widow may like but any boy whom you may like either from among agnates or from sagotrajas (the italics are ours) for performance of religious rites as ordained by Sastras

3. The class from which the adoption is (to be made is clearly indicated and is (not left as vague and as indefinite as in the case of Suryanarayana v. Venkataraniana (1903) 26 Mad 681. It cannot also be said that after obtaining the consent there was (any delay in making the adoption. No doubt the adoption was about 24 years after the death of the husband, but it imusfc be remembered that at the time of his death defendant 2 was only about 11 years old. If the adoption is otherwise valid it cannot be said that it must be held to be invalid solely on the ground that it was not made by her at a date [earlier than 1924. The only substantial grounds for consideration therefore are the grounds urged in the lower Court and we will deal with them in order. The first question is whether the adoption is invalid for the reason that the plaintiff's consent was not obtained. It is conceded that if the promotion of the spiritual interests of a deceased husband is to be the main factor in determining the validity of an adoption, then the argument that the deceased husband's daughter should be consulted has obviously not much force; but what is contended is that the protection of his estate for his heirs should also be considered by the widow in making the adoption and, if so, the adoption without consulting the daughter, should be held to be invalid. Admittedly there is no authority either of Hindu law texts or of any decision in support of this proposition; what authority there is, is against it, In Visvasundara Row v. Somasundara Rao (i) the question arose whether a daughter's son is entitled to be consulted regarding an adoption by a widow and it was held that as he is not agnate he has no right to be consulted.

4. As all the arguments now advanced in support of the proposition have been elaborately dealt with in that case we do not think it i3 necessary to discuss the question again in this judgment.

5. If a daughter's son has no right to be consulted, then it must follow that the daughter can have no ground to say that she should be consulted; obviously she can have no more right than her own son. Mr. Somasundaram contends that this decision has been dissented from and that 'gnatis' (kinsmen) whose consent is material to validate an adoption have been interpreted in subsequent judgments to include cognates also bringing within its description the daughter of the deceased husband, and reference was made to Brahmayya v. Rattayya : AIR1925Mad67 and Keser Singh v. Secy of State AIR 1926 Mad 881 In the former case Ramesam, J., no doubt dissented distinctly from the decision in Visvasundara Rao v. Somasundara Rao AIR 1920 Mad 451, but Jackson. J., expressly says following Visvasundara Rao v. Somasundara Rao AIR 1920 Mad 451, that a daughter's son is not entitled to be consulted as he is not a gnati. Both the learned Judges seam to have based their decision on the facts of the case which showed that of the two nearest agnates one was not consulted at all and the consent of the other was corruptly obtained and that therefore the adoption was invalid. The question whether the assent of a daughter's son of her deceased husband should be obtained by the widow to make an adoption valid did not necessarily arise in the case. In Eesar Singh v. Secy, of State AIR 1926 Mad 881, Spencer and Venkatasubba Rao, JJ., held that the reasons given by the learned Judges in Visvasundara Rao v. Somasundara Rao AIR 1920 Mad 451for excluding a daughter's son from the claas of kinsmen whom it is obligatory for a widow to consult were not convincing and well founded. But that decision cannot help the respondents as what was decided in that case was that

in the absence of agnate reversioners (the italics are ours) a Hindu widow can, in Southern India, adopt with the consent of the nearest cognate reversioner.

6. And, further, the question of the con-gent of the daughter's son did not arise in that case. The point that was decided in that case is thus stated at p. 679 of 49 Mad:

There being no agnate relation and the nearest cognate relation, who under the law would be the presumptive reversioner having assented to the adoption, does his consent validata it

7. It would thus appear that there is no express decision by a Bench differing from the decision in Visvasundara Rao v. Somasundara Rao AIR 1920 Mad 451. As that decision is still good law, following the reasoning adopted in it we overrule the contention that defendant 2 in this case should have, before adopting defendant 1, obtained the consent of the plaintiff for making the adoption valid. The next question is whether the lower Court's decision that the adoption is invalid on the ground that a clear majority of the agnates was not consulted and did not consent, can be upheld. The nearest sapindas of defendant 2's deceased husband are defendants 3 and 4; and Popoori Sambayya, Popoori Ramatharakam, Popoori Sastrulu and Popoori Gangathara Sastri are his remote rever-sioners. Of these the first two seem to be a degree nearer in relationship to the deceased than the other two; but defendants 3 and 4 being the nearest agnates, the others may be taken to fall within the general class of remote reversioners. Defendant 3 was twice written to, by the widow for obtaining his consent. On both occasions he refused to receive the latter addressed to him. The postman, D.W. 2, gave evidence to the effect that he told him that the registered postcard came to his address and were sent by defendant 2 whose name was noted on the card and that he refused to receive them saying that he did not require them. About these letters defendant 3 in his evidence says:

I judged that they were in connexion with the authority to adopt.... I asked the postman what they were about. He said that defendant 2 wanted to adopted hence sent the notice.

8. Defendant 2's vakil also wrote to him and that letter also was refused. It is dear that his conduct in refusing the letters was capricious. He knew what the letters were about and yet he would neither consent nor refuse. Of course in his evidence he now says that he had Already given her his consent and that being so he thought that there was no necessity to ask again for it. Evidence has been now given by the defendants to show that there was a gathering of the kinsmen prior to the adoption and that defendant 3 specifically gave his consent at such a meeting The evidence on this point has been rightly disbelieved by the learned Subordinate Judge. It is clear that defendant 3 is now making an effort to help the widow. We must therefore take it that defendant 3 capriciously refused his consent when the widow asked him for permission to adopt. Defendant 4, as we have already said, gave his consent. The reversioner a Sambayya and Ramatharakam were not consulted, but the other two reversioners were present at the ceremony and they actually attested the deed of adoption (Ex. I) along with the acting Village Munsif and many others. The ceremony of adoption must have been sufficiently public, and these two reversioners would not have attested the deed without knowing what it was about. In these circumstances it may be taken that they gave their consent to the adoption. If defendant 3 is excluded as one who has virtually refused his consent, then amongst the five agnates of her deceased husband the widow obtained the consent of the only remaining nearest sapinda and two of the reversioners before making the adoption. This would constitute support of the majority of her deceased husband's agnatic kinsmen in support of the adoption.

9. It is argued that if defendant 3 capriciously withheld his consent defendant 2 after obtaining the consent of defendant 4 should have taken the consent of the next reversioners Sambayya and Ramatharakam, and since their consent was not taken the consent of the other reversioners Sastrulu and Gangadhara Sastri is useless and that the adoption is therefore invalid. The Privy Council cases which have a bearing on this point do not support this argument. It is no doubt obligatory on the part of the widow to consult the nearest sapindas; but if their consent is capriciously withheld it is not necessary that a family council should be held to consider the propriety of the adoption, or that the reversioners should be consulted in the order of their degree of relationship to the deceased husband, or that even that all the reversioners should be consulted. The reason for the widow to obtain the assent of kinsmen and the nature of the assent are thus described by their Lordships of the Privy Council in Collector of Madura v. Muthu Ramalinga Sethupathy (1867-69) 12 M.I.A.397:

The assent of the kinsmen seems to be required by reason of the presumed incapacity of women for independence rather than the necessity for procuring the consent of all those whose possible and reversionary interests would be defeated by the adoption 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.

10. Referring to this passage their Lord-ships explained it in Vellanki Venkata krishna Rao v. Venkatarama Lakshmi (1876) 1 Mad 174, as follows:

All which this committee intended to lay down was, that 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 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.

11. What is meant by 'family council' used in this passage is explained by their Lordships in Kristnayya, v. Lakshmipathi AIR 1920 PC 4 where it is observed:

The reference to a 'family council' gave rise to some doubt whether, where there were agnatic relations closely related to the deceased, the assent of those standing in a remoter degree was either necessary or sufficient The consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honost judgment on the matter.

12. These passages which form the basis of the law on the point, read together, |do not make it obligatory that a family council of the agnates should be called by the widow to consider the propriety of the adoption or even that all the re-versioners should be consulted before the adoption is made. The nearest sapindas of course should be consulted; but when it becomes necessary to consult the revorsioners all that is wanted is that there should be such evidence of consent as would show that the widow in making the adoption is not acting improperly or capriciously or from a corrupt motive. This would be proved no Idoubt by showing that the opinion of a substantial majority of the reversioners lis in favour of the adoption; but it does not mean that each and every rever-isionor should be consulted or that if one or two are omitted from consultation the adoption would be necessarily inJ valid. In this case it is not shown that Sambayya and Ramatharakam were not consulted by defendant 2 for reasons which would suggest that if consulted they would have opposed the adoption or that she had any special reason for not consulting them. As a matter of fact tha evidence shows that Sambayya was pre. sent at the adoption ceremony though he has not attested the document. The reversioners form a class of agnates that should be consulted by the widow; and if she is able to show that a substantial majority is in favour of the adoption she must be taken to have done all that is required under the law to make the adoption valid. That the nearer reversioners were not consulted but only the opinion of those more remote than the excluded ones was taken, would have its value as a question of fact in arriving at a conclusion whether a substantial majority in the circumstances of the case can be said to have given an opinion in favour of the adoption. Each case must depend upon its own circumstances. So long as there is a prepon-derence of opinion amongst the reversioners in favour of the adoption, we do not think that the omission to consult one or two of the reversioners nearer than those that were actually consulted will by that fact alone invalidate the adoption. In the case before us there can be no question about the propriety of the adoption or of the fitness of the boy actually adopted. There is not a shred of evidence to show that it was not necessary for the widow to make the adoption, nor is there any evidence to show that in making the adoption she was acting improperly or from corrupt motives. Defendant 3 having refused to say yes or no to her request for permission, she obtained the consent of defendant i, the next nearest sapinda, and of two other reversioners, thus obtaining the opinion of a substantial majority in her favour. The fact that two of the reversioners were not actually consulted or that a family council was not called to consider the propriety of the adoption will not in our opinion make the adoption of defendant 1 invalid in the circumstances of the case. For the above reasons we would hold that the adoption of defendant 1 by defendant 2 has been proved to be valid. 'We would therefore set aside the decree of the lower Court and dismiss the plaintiff's suit with costs throughout.

Jackson, J.

13. I agree. I think that in this vexed question of adoption by the widow in the absence of her husband's authority the guiding principle is the passage in Vellanki Venkatakrishna Rao v. Venkatarama (1876) 1 Mad 174 quoted by Lord Cave in Kristnayya v. Lakshmipathi AIR 1920 PC 4:

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 oorrupt motives.

14. In Veerabasavaraju Pantulu v. Bala-surya Prasada Rao AIR 1918 PC 97the word 'requisite' is used al. most as though the assent was something more than evidence supporting an in. ference, and amounted to an essential pre-condition of the adoption. But I do not think that the Judicial Committee intended to modify the law as previously laid down. It has been held by this Court in Visvasundara Bow v. Soma-Sundara Row AIR 1920 Mad 451 that a daughter's son cannot claim as of right to be consulted by the widow, and that ruling is still binding upon us, though it was questioned by a single Judge in Brahmayya v. Battayya : AIR1925Mad67 . In Resar Singh v. Secy, of State AIR 1926 Mad 881 this Court had to con-aider a peculiar case where there were no surviving agnates who could have been consulted, and it held that in that circumstance the consent of cognates would afford the support to the inference that the adoption is not capricious for which the Court is seeking. That seems to be a natural and logical conclusion, and I say that in my judgment in Brahmayya v. Battayya : AIR1925Mad67 I never intended to suggest anything to contrary. I was only ooncerned in supporting Visvasundara Row v. Somasundara Rao AIR 1920 Mad 451, and stated that although in my opinion the consultation of a cognate was not essential, it might well be very useful in helping the Court to come to its conclusion. If the words on p. 658 (of 49 Mad.):

There appears to be no authority for limiting the class of gnatis and sapindas whose assent may be taken by a widow;

and again 'the reasons given by them for excluding a daughter's son' mean that according to my judgment the consent of cognates may not be taken, and a daughter's son must be excluded, I can only say that my judgment has been misunderstood. There was no question of exclusion in my mind, but I did not regard the assent of a daughter's son to be essential, provided that there was sufficient consent of agnates to support the inference of good faith. Applying those principles to the present case I find no reason to infer caprice, and sufficient consultation and consent to rule out that inference. The widow was aoting under legal advice and tried to consult both of her husband's brothers, defendants 3 and 4. Defendant 3 declined to help her by refusing the letter, though he was aware of its contents which may clearly be styled an improper refusal, so that he counts for nothing. The second brother, defendant a, assented in terms which are not too general. Then two remoter sapindas obviously assented because they both attested the deed and were present at the adoption. There is no reason to suppose that defendant 4 was exercising undue influence over the widow, or that she merely wished to spite the plaintiff. The son of defendant 4 was the natural person to be selected for adoption, and all that can be said against it is that the widow might have performed it at an earlier date. But that alone is not sufficient to invalidate an adoption. Of oourse the adoption disappointed the hopes of plaintiff's son as reversioner, but unless the adoptee happens to be the reversioner himself that is inevitable. A. reversioner has no more right to forbid an adoption, because his interests are affected, than an heir has to forbid a natural birth. And if an adoption is regarded as a form of birth the logical conclusion would seem to be that at which the Bombay Courts have arrived, that the widow's motive in making an adoption is no more material than a wife's motive in having a baby. The trend of Madras decisions however makes the motive relevant; but in this case I agree that there is no reason for hold, ing that the motive was capricious.


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