Seshagiri Ayyar, 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 30ns died during his lifetime, the three married sons leaving behind them their widows. In this state of circumstances Gurumurthi adopted a boy, the first defendant in this suit, and made a will on the 28th June 1909 by which he authorized his three daughters-in-law to adopt a son each. The second plaintiff in this case adopted a son under the authority given to her by Gurumurthi. That boy died. Thereupon she attempted to adopt the first 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 first plaintiff and by the adoptive mother as second plaintiff to recover the share of the property bequeathed under the will. Their allegations are that the first defendant gave his consent for adopting the first plaintiff, that the boy was selected by the first defendant, that the secular ceremony of giving and taking was completed in the presence of the first defendant in July 1909 and that the first defendant dishonestly prevented the second plaintiff from performing the dattahomam ceremony.
2. The prayer of the plaintiffs is for a declaration that the adoption of the first plaintiff is valid and in the alternative that in case the plaintiff's adoption is found to be invalid that the second plaintiff is entitled to the share mentioned in the testament of Gurumurthi as the mother and heir of her first adopted son.
3. The defence of the first 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 first 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 first defendant before the actual adoption took place to withdraw his consent, that the conduct of the first defendant amounted to an implied withdrawal of the previous consent given by him, that consequently the adoption of the first plaintiff was not valid, but that as the parties became divided in status by the provisions of the will of Gurumurthi the second 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 first plaintiff is valid. The first 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 first question is whether the first defendant consented to the adoption of the first 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.
7. His Lordship then dealt with the evidence and proceeded as follows:
8. I therefore agree with the District Judge that the first defendant gave his consent for a second adoption by the second plaintiff and that he selected the first plaintiff for that purpose. Excepting the bare denial of the first defendant there is no evidence worth the name as against the oral and documentary evidence adduced on behalf of the plaintiffs.
9. 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 argument 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 is 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 first defendant by the second plaintiff's brother. The writer says:
As we are all satisfied as to Chiranjeevi Lakshminarayana you would consider well whether you would send word to his father's house.
10. 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 first defendant as has teen done in the case of other boys who were rejected. This document coupled with the omission to state this point in Exhibit 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.
11. The conclusion on facts is that the second plaintiff had the consent of the first defendant to take the first plaintiff in adoption, the first plaintiff was taken to the family house of the parties with a view to the religious ceremony of dattahomam being performed, that the first defendant subsequently prevented the adoption taking place, and that the second plaintiff took the boy in adoption in spite of this opposition in 1913.
12. 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 was divided the first defendant as the nearest reversioner to the estate of the second plaintiff's husband was alone competent to authorize the adoption.
13. 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.
14. As a widow in a Mitakshara family is incompetent to act sui juris she can make an adoption only if she is authorized 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 jeopardized. Their consent is equivalent to an expression of 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 Raghunada Deo v. Sri Brozo Kishore Patta Deo (1876) I.L.R. 1 Mad. 69 (P.C.) the Judicial Committee speak of these 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 adaption was obtained by fraud, misrepresentation, etc., or that it was given from interested or corrupt motives, Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishore Patta Deo 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 acceeding to the proposition that mere lapse of time without more or the death of the consenting sapinda would put an end to the authorization 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.
15. 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 authorize an act implies the exercise of some discretion whether the act ought or ought not to be done.
16. Sir Lawrence Jenkins in Bhimappa v. Basawa 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.
17. 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. (1891) 22 Bom. 558 is apparently based on this view. In Narasimha v. Parthasarathy (1914) I.L.R. 37 Mad. 199 (P.C.) 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 characterize 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 Ganesa Ratnamaiyar v. Gopala Ratnamaiyar (1880) I.L.R. 2 Mad. 270 (P.C.) their Lordships of the Judicial Committee point 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 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.
18. 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 out a justification for the revocation but whether a justification was offered. In the present case, the first defendant strenuously denied that he gave his consent and he has not set forward any grounds in the written statement or in his evidence to justify the withdrawal of the consent.
19. 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 adoption, and that this conduct on his part is not enough to nullify the consent which was voluntarily and bona fide given by him.
20. I shall now proceed to deal with the few cases that were cited in the argument. Mami v. Subbarayar I.L.R. (1913) Mad. 145 was strongly relied on for the respondent. In that case the learned Judges inclined to the view that 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 the 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. 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 a 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 subsequently became entitled to be heard.
21. I do not think the learned Judges intended to lay down that the withdrawal can be arbitrary. They had not that aspect of the question before them. The observations in Subramanyam v. Venkamma I.L.R. (1903) Mad. 635 on which the learned Judges in Mami v. Subbarayar I.L.R. (1913) 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. Subbarayar I.L.R.(1913) Mad. 145: see also Krishnayya v. Lakshmipaty (1915) 30 M.L.J. 265. There is no pronouncement of the Judicial Committee or of the other High Courts on this question.
22. In my opinion, it would be opposed to all notions of fair play and justice that a party who is clothed with 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 second plaintiff was justified in taking the first plaintiff in adoption, notwithstanding the demur of the first 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.
23. 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 second plaintiff's first adopted son was self-acquired property and as on the death of that adopted son the property was inherited by the second 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 the inheriting mother could not be divested of that property by the adoption which she made subsequently. The Guntur case Vallanki Venhata 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 a self-acquisition. Mussumat Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 209 related to property which vested in the widow of the adopted son. In this present case, the first adopted son died unmarried. We must therefore overrule this contention.
24. For the above reasons the decision of the District Judge in so far as it dismissed the suit of the first plaintiff must be reversed and his decree should be modified by declaring that the first plaintiff as adopted son is entitled to the share decreed to the second plaintiff. The memorandum of objections must be dismissed with costs. 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 first plaintiff.
25. I agree.