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Sri Vadrevu Viswasundra Row and anr. Vs. Ryali Somasundara Rao - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1920)ILR43Mad876
AppellantSri Vadrevu Viswasundra Row and anr.
RespondentRyali Somasundara Rao
Cases ReferredVayidinadha v. Appu I.L.
Excerpt:
hindu law - adoption of daughter's son or sister's son, validity of--custom among brahmans of andhra or telugu portion of madras presidency--adoption by widow--consent of sapindas--gnatis--bhinnagotra sapindas--consent of daughter's son whether necessary--invalid adoption--upanayanam in adopted family after an invalid adoption--subsequent adoption, whether barred--subsequent upanayanam, whether competent. - - fart of the lower court's judgment is occupied with their failure to consent. if this means, firstly, that the consent of the sapindas is material as guaranteeing the propriety of the widow's action and, secondly, that nothing can be deduced from the consent owing to the circumstances in which it was given, the first conclusion may be endorsed. 7. that objection is that plaintiff,.....oldfield, j.1. the question in this case is generally whether second defendant is the adopted son of the late zamindar of vegayammapeta. plaintiff originally denied that any adoption ceremony had been performed, but he abandoned that position at the trial. there and here he has pressed only four objections two to the consent of the kinsmen, which in the absence of authority from her deceased husband, first defendant, the widow, required to enable her to make a valid adoption, and two to the capacity of second defendant to be adopted. i deal with them in order.2. of the kinsmen two, bhimasankara bow and suryaprakasa row, died 'during the trial. neither informed the first defendant of his reason for not consenting to the adoption--vide venkatakrishnamma v. annapurnamma i.l.r(1900) ., mad.,.....
Judgment:

Oldfield, J.

1. The question in this case is generally whether second defendant is the adopted son of the late Zamindar of Vegayammapeta. Plaintiff originally denied that any adoption ceremony had been performed, but he abandoned that position at the trial. There and here he has pressed only four objections two to the consent of the kinsmen, which in the absence of authority from her deceased husband, first defendant, the widow, required to enable her to make a valid adoption, and two to the capacity of second defendant to be adopted. I deal with them in order.

2. Of the kinsmen two, Bhimasankara Bow and Suryaprakasa Row, died 'during the trial. Neither informed the first defendant of his reason for not consenting to the adoption--vide Venkatakrishnamma v. Annapurnamma I.L.R(1900) ., Mad., 486 . The former in fact did not refuse his consent explicitly. Fart of the lower Court's judgment is occupied with their failure to consent. But nothing has been said regarding it by plaintiff in this Court and I therefore turn at once to his attack on the four kinsmen who consented.

3. The allegation is, first, that the consents of these four were obtained by corrupt means. Defendants before the trial naturally asked for particulars, but the lower Court in its order, Exhibit CXLII, did not insist on them on account of the delay in making the request, which may have been correct, although it also gave the remarkable reason that, plaintiff having stated that the corruption was by payments of money, defendants were entitled to nothing more and could not expect plaintiff to disclose his evidence. In fact, plaintiff in Exhibit CXLII (b) had said that he could not give any particulars of the money payments alleged, until he had inspected the defendants' accounts; and his case must therefore start under the strongest suspicion that the detailed story he attempted to prove was invented for the trial,

4. [His Lordship dealt with the evidence and continued:]

5. I agree with the lower Court that the payment is not proved and that there is no ground for a conclusion that the consents of these four kinsmen were obtained by corruption.

6. The lower Court, however, in a portion of its judgment which it is not possible to understand, has nevertheless held that these consents were not such as to show that the adoption was made by the widow, not for corrupt or capricious motives, but on a fair consideration of what may be Galled the family council, although it afterwards found that the first defendant's motive is not very material in itself and that the plaintiff can question the first defendant's motive in so far as it can be inferred from the conduct of the sapindas who gave their consent. If this means, firstly, that the consent of the sapindas is material as guaranteeing the propriety of the widow's action and, secondly, that nothing can be deduced from the consent owing to the circumstances in which it was given, the first conclusion may be endorsed. But, as regards the second, it has been found that consents were given, which are not shown to have been obtained by fraud, coercion or corruption; and that is sufficient. The Court's right to scrutinize the kinsmen's reasons extends only to cases in which consents are refused, not to those in which they are granted. The responsibility is imposed by the law on the kinsmen, and the Court cannot interfere with their exercise of it, We have here, subject to the argument to be next considered, the consents of the four nearest sapindas: and, if plaintiff's next objection cannot be sustained, the authority thus conveyed will be sufficient.

7. That objection is that plaintiff, as the daughter's son of the widow's deceased husband, was entitled to be consulted, and that the adoption made without consulting him was bad. There is no explicit decision that a daughter's son is to be considered a kinsman or gnati or should be consulted regarding an adoption. But plaintiff relies on, and the lower Court has found for him on consideration of, certain cases, in which consultation with or consent of the reversionary heirs of the deceased, to whom the adoption is made, is referred to as essential; and that he is such an heir there is no doubt, Contra, however, it is argued that in those cases the position of the daughter's son was not in question and that the reference to the reversionary heirs was made loosely, nothing in the circumstances turning on the distinction between them and the agnates, whose right to be consulted arises only from their responsibility for the spiritual welfare of the deceased. Plaintiff's contention has been supported by reference to principle and to authorities,

8. It is first material that in the earliest authority, the decision in the Ramanad case, Collector of Madura v. Sathupathy (1868) 12 M.I.A., 397 , of the Judicial Committee in 1868, the doctrine of the widow's power to adopt with the consent of the kinsmen was recognized, not so much with reference to anything explicit in early texts as because it had been received by the particular school of Hindu Law, which governed the district in question. Accordingly, after reference to such reception as evidenced by the works of Mr. Colebrooke and of Sir Thomas Strange and the opinions of the pandits, the Committee observed that the assents of the kinsmen seem to be required by reason of the presumed incapacity of woman for independence rather than the necessity for procuring the consent. of all those whose possible and reversionary interest would be defeated by the adoption. That this was the basis of the Committee's conclusion is material in connexion with the texts on which plaintiff has relied, as indicating the basis on which the doctrine is really founded For it will be seen that the portions of them on which plaintiff's argument depends, is not that which the Committee had in mind.

9. The, earliest of the texts is Manu, Ch. V, pl. 148, which runs in Sir W. Jones' translation:

In childhood must woman be dependent on her father; in youth on her. husband, her lord being dead on her sons.... A woman must never seek independence.

10. This is repeated in Ch. IX, pl. 3 and its last sentence may be supposed to be the earliest appearance of the foundation for the Committee's conclusion, so far as texts were in question. Plaintiff, however, relies on the gloss of the well-known commentator--Kulluka Bhatta, printed by Sir W. Jones--upon the sentence just quoted:

If she has no sons, on the near kinsmen of her husband; if he left no kinsmen, on those of her father; if she has no paternal kinsmen on the sovereign;

11. and it is on this and similar references to the widow's dependence that the theory of the right of the agnates to concern themselves with her adoption rests, Another such reference is to be found in Yagnavalkya, Ch. 1, verse 85:

Let a female be taken care of by her father, while a maiden; by her husband, when married; and by her sons, in old age, If none of these exist, let other gnatis take care of her. A woman is never fit for independence;

12. and this, as appears from Krishnayya v. Lakshmipathy : (1916)30MLJ265 is interpreted by Viramitrodaya as follows:

But, when the husband is dead, the assent of those only is necessary, on whom she is dependent.

13. Again in Narada, Ch. XIII, verse 28, quoted in Ghose's Principles of Hindu Law, 3rd Edition, Vol. 1, page 323.

after the death of her lord, the relations of the husband shall be the guardian of the woman, who has no son. They shall have full authority to control her, to regulate her manner of life and maintain her. When the husband's family is extinct or contains no male or is reduced to poverty, or when no one related to it within the degree of a sapinda is left, the father's relations shall be the guardians. of a woman:

14. And there is lastly the statement of Mr. Colebrooke in his commentary on the Mitakshara, Ch. I, Section XI, pl. 9, that whilst the author of the Vyavaharamayuka admits the right of the widow to adopt without her husband's authority, he requires that she shall have the express sanction of his kinsmen, and there are certain cases to the same effect in Strange's Hindu Law and Hindu Law Gases. Plaintiff argues that the reference to kinsmen in those cases include cognates as well as agnates, not only because this is entailed by the words used, but also because it is involved in the underlying principle.

15. The term 'kinsman' is of course ambiguous; and reference is necessary to the words used in the Sanskrit texts, 'Sapinda' and 'Gnati.' But the former may or may not include Bhinna Ghotra as well as Ghotraja Sapindas, the daughter's son being included only in the former; and we have not been shown authority for holding that Kulluka Bhatta in his gloss was using it in the one sense rather than the other. Similarly, as regards the reference to the exhaustion of the husband's sapindas in Narada. The difficulties in the way of adoption of one invariable rendering for the term in the case of one text, the Mitakahara, are illustrated by reference to Ramchandra Martand Walkar v. Vinayak Venkatesh Kothekar I.L.R.(1915) , 42 Cal., 384. It is, however, significant that in the Ramnad case one Muthuswami, a Samanodaka, was excluded from the category of Sapindas, and that the Judicial Committee may therefore be supposed to have used the term in its stricter sense. It is possible to say only that plaintiff has not established the inclusion of Bhinnagotra Sapiadas in it; and I, therefore, turn to the other expression which is in question.

16. The word gnati in its primary significance is no doubt limited to agnates, vide Apte's Dictionary, Mr. Ghose in one passage in his Principles of Hindu Law, Vol. I, page 183, dealing with inheritance, has no doubt translated it sapinda, but in connexion with an argument limiting sapindas to agnates, and elsewhere in connexion with adoption (page 677), he translates it as 'agnate' directly. In Mr. Mandlik's Hindu Law, at page 57, the word is rendered in the passage from Yagnavalkya already quoted as 'clansmen,' and in West and Buhler (A digest of the Hindu Law of inheritance, Partition and Adoption, etc.), at page 1006, as 'the gentile relatives,' the agnatic significance being clear. In Krishnayya v. Lashmipathy : (1916)30MLJ265 , Sri Virada Pratapa Raghunada Deo v. Sri Brozo. Kishoro Patta Deo I.L.R(1876) ., Mad., 69 was read as showing that the text of Yagnavalkya should be understood as limiting the expression 'Gnatis' to those who are in the line of heirs to the last holder and to this decision I shall return. But in Veerabasavaraju v. Balasurya Prasada Rao I.L.R(1918) . Mad., 998 , the Judicial Committee, at page 1004, itself explained the Ramnad case (1868) 12 M.I.A., 397 as deciding that the widow might adopt with the consent of the male agnates. All this is against, and nothing has been adduced in favour of this part of plaintiff's argument, It is in fact on the theory as deduced from the underlying principle that he relies.

17. Before examining that theory I refer to one form, in which it has been supported, that the daughter's son's consent is required to validate the widow's adoption, because it is required, in the case of her alienations, his heirship being the reason in both cases; and there is no doubt that this argument is referred to, although it does not appear to have been pursued in Suryanarayana v. Ramadoss I.L.R(1918) ., Mad., 604 and Vinayak v. Govind I.L.R(1901)., 25 Bom., 129 , where the extract given above from Narada is quoted, and by the Judicial Committee in Veerabasavaraju v. Balasurya Prasada Rao I.L.R.(1918) , Mad., 998 ; and it may be admitted that so far as the character of the consent is considered in them, as presumptive evidence, to use the words of Seshagiri Ayyar, J., in the first of these authorities, of the goodness of the widow's act, the analogy may be instructive. It does not however follow, and it is not the case, that a general argument from the parsons who must give and the motives recognized for requiring consents in the one class of cases to the persons and motives appropriate in the other is admissible, for to contrast them, consultation with the kinsmen, if not their consent, is a condition precedent to a valid adoption; one consenting person may be regarded as representing others; and the consent of all who have to be consulted is not necessary. But in the case of an alienation the law, as stated recently in Rangasami Goundan v. Nachiyappa Goundan (1919) 41 I.A., 72 , is that an alienation can be supported on its merits with reference to necessity and independently of consent; that consent, not merely consultation, is essential, and that the consent of every person who may fairly be expected to be interested to, dispute the transaction, is required. And in view of these differences it would be unsafe to assume, what has never statedly been decided, that the principle underlying the validation of the widow's act by consent of or consultation with otter persons is the same in the two cases. The view of the necessity for the consents, for which plaintiff contends, is that they are required as a guarantee for the widow's motives in adopting, which should be, not only the promotion of the spiritual interests of her deceased husband, with which admittedly the daughter's son is not concerned, but also the protection of his estate for his heirs, and that the daughter's son being among those heirs is entitled to a voice in deliberations which affect his interests. It is no doubt not a valid objection to this theory that no similar claim is made for the daughter, who is a nearer heir, since, as a woman, she must be regarded as equally incompetent with the widow and as incapable of advising her. But, it is a practical consideration that ordinarily the daughter's son will be a minor and his advice will be useless, when the adoption is under discussion. Another difficulty arises in connexion with the position of the daughter's son, in the order of heirs before the parents and other agnates, since it is impossible to reconcile the right of the first mentioned to express a decisive opinion with the observations in the Ramnad case (1868) 12 M.I.A., 397, which have also been quoted in later decisions, on the exceptional value to. be attached to 'the consent of the father-in-law to whom the law points as the natural guardian and venerable protector of the widow,' as in itself a sufficient justification for her action. In that case, the purpose for which the assent of the kinsmen is insisted on is stated solely and unambiguously, and in terms never subsequently repudiated, as being to show that the act was done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive; 'and the religious obligation to adopt' in order to complete or fulfil defective religious rites is mentioned, Again, in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo I.L.R(1876) ., Mad., 69 , there was a reference to the principle that the validity of an adoption is to be determined rather by spiritual than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution of property an accessory of it. This statement is no doubt made by way of an argumentum ad hominem in respect of a previous judgment of Holloway, J.; and it is followed by the observation that, while it may be the duty of a Court of justice administering Hindu law to consider the religious duty of adopting a son as the essential foundation of the law of adoption and the effect on the devolution of the property as a mere legal consequence, it is impossible not to see that there are grave social objections to making the succession to property, and it may be in the case of collateral succession, the right of persona actually In possession, dependent on the caprice of a woman. But the only inference drawn was that the Court should keep the power strictly within the limits which the law has assigned to it, apparently in the particular case under disposal by refusing to extend it, as Holloway, J., proposed, to authorize an adoption made with the consent of any one Sapinda. The Ramnad case (1868) 12 M.I.A., 397 was further explained in Vellanki Venkata Krishna Rao v. Venkata-Rama Lakshmi I.L.R(1876) ., Mad., 174 ), and in connexion with the requirement in the former that.

the adoption should be made by the widow in the proper and bona fide performance of a religious duty and not capriciously or from a corrupt motive

18. it was observed that it

would be dangerous to introduce questions as to the particular motives operating on the mind of the widow

19. and that only proof of

such assent on the part of the sapinda was required as should be sufficient to support the inference that the adoption was made not from a capricious or corrupt motive, but upon a fair consideration by what may be called a family council of the expediency of substituting a son by adoption to the deceased husband.

20. These cases are the foundation of the doctrine of the consent of kinsmen as the widow's authority. Throughout them the religious motive insisted on in the Ramnad case (1868) 12 M.I.A., 397 is not abandoned; and, if in the Chinnakimidi case I.L.R.(1876) , Mad., 69 it is recognized that temporal considerations cannot be lost sight of, that can be explained consistently with the language used on the ground that reference to them will be a safeguard against the caprice or corrupt intention of the widow, as in many cases involving the disintegration of the estate. Krishnayya v. Lakshmipathy : (1916)30MLJ265 supplies an actual instance of the entertainment by her of such an intention, in case one is required.

21. It is in fact only after a considerable interval and in the case last cited, that plaintiff can find anything directly supporting his contention. There, Seshagiri Ayyar, J., after agreeing that the motive which should guide a widow, should be to minister to the spiritual wants of her husband, said that the assent of the sapindas should not necessarily be regarded as a religious act, because the text of Yagnavalkya already referred to implied that her protection by them in temporal affairs alone was contemplated. So far this is in plaintiff's favour. But it is not clear in what shape the argument from the existence of the religious motive was relied on or how its rejection influenced the decision, that the assent of a mere majority of sapindas, without reference to their character as mere reversioners was insufficient. For the learned Judge was dealing with a case, in which the consent of only one out of the six nearest sapindas had been obtained and the question was whether the other five should have been ignored. And he, therefore, had not to consider whether consultation with a more remote reversioner, such as the present plaintiff, was obligatory or whether heirship, apart from spiritual responsibility, was material. He, in any case proceeded to hold, with reference to the interpretation placed on the text of Yagnavalkya by the Viramitrodaya, that the guardianship of the widow did not vest in the whole body of gnatis, the natural interpretation being that she was dependent on those nearest to her husband; and he regarded the judgment in the Guntur case I.L.R(1876) ., Mad., 174 as negativing the plea that the widow in obtaining the consents did not act on spiritual considerations. Nothing then was actually decided against the view that the spiritual should be the dominant consideration, and much was said in favour of its being so; and there is no departure from that view in the observation of the same learned Judge in Suryanarayana v. Ramadoss I.L.R(1918) ., Mad., 604 , that powers of consent had been given to the sapindas, as they were interested in the property, and were expected to see that the spiritual welfare of the deceased was not jeopardised. Plaintiff relied lastly on Veerabasavaraju v. Balasurya Prasada Rao I.L.R(1918) . Mad., 998 . In this Court the question of spiritual motive was not dealt with, because the Bench, of which I was a member, reached a conclusion against the widow's authority on other grounds. But in appeal, the Judicial Committee, confirming this Court's decision, referred to it at some length and undoubtedly specified the possession of an interest in the protection of the estate as a qualification for inclusion in what was described in the Guntur case I.L.R(1876) ., Mad.; 174 as the family council. They, moreover, quoted the opinion expressed in Golapchandra Sarkar Sastri's Hindu Law of Adoption that adoption is more a temporal than a spiritual institution, and that the requisites for a valid adoption being all temporal the spiritual considerations should not be allowed to influence the judgment regarding the secular essential. If it were clear that this opinion had been adopted by their Lordships, it would go far towards supporting plaintiff's contention, that a daughter's son, on whom no spiritual responsibility rests and whose temporal interest in the reversion is comparatively close, is entitled to be consulted. But in fact the judgment does not either before or after this quotation express approval, either comprehensive or qualified, of the views contained in it, and there is no attempt to reconcile or contrast them with the references to religious duty contained in extracts from the Ramnad case (1868) 12 M.I.A., 397 occurring elsewhere in the judgment, except a statement with reference to it and the Guntur case I.L.R(1876) ., Mad.; 174 that rights of property cannot be left out of consideration when the question what sapinda's consent is primarily requisite is under consideration. It may be added that the learned author in the sentence prior to that cited by their Lordships (op. cit., p. 259), apparently describing the opinion of this Court in language taken from the judgment in the Chinnakimidi case (1873) 7 M.H.C.R., 301 , admitted that it does not share his views; and I would observe with all respect that this reasoning, as it appears in earlier passages of his work (pages 43, 45, 142, 145) seems to be rather influenced by his own experience of the actual sentiments or conduct of particular sections of the public than by the origin and development of the doctrine of adoption by consent of kinsmen in the authorities usually relied on.

22. On these authorities the conclusion must, in my opinion, be that the spiritual motive is at least dominant and consultation with those who can appreciate it is essential. That the protection of the deceased's estate should be excluded from consideration as a motive is, as the authorities recognize, not to be expected or desired; and the extent to which it should be or in particular cases has been considered with reference, rather to an estimate of the purity of the widow's motives than to the reversioner's prospects, is incapable of precise definition. But the conclusion must be that it is of secondary importance; and that corroborates the construction placed on the actual wording of the text's by which the daughter's son, to whom, it is not disputed, only the temporal motive can be supposed to appeal, is not one of the gnatis, whom it is necessary for the widow to consult.

23. This conclusion entails that the consents obtained by the widow were a sufficient authority for her action, and I therefore turn to the first of plaintiff's objections to the capacity of the second defendant for adoption. The facts on which it is based are. that first defendant originally went through the ceremony of adopting him in 1900. A suit similar to that now before us was brought, and the adoption was declared invalid by the lower Court on one ground, that he was incapable of adoption, being her daughter's son. She, however, performed the ceremony of his upanayanam, whilst an appeal to this Court was pending. After its decision against her on a different ground and the consequent failure of the adoption already made, she again on 24th January 1907 adopted the second defendant, that being the adoption with which we are concerned. The plaint averment regarding it was that, the ceremony of adoption having been performed with regard to, second defendant, although that adoption was found invalid, he was ineligible for any further, adoption On this the issue: framed, it would seem without objection, was 'whether the adoption of a daughter's son' (meaning apparently a person of a different gotra) 'after his upanayanam is invalid?' and, although there is some divergence from the pleadings that, it is agreed, is what we have to decide, It has been necessary to state the points thus fully, because; it has been dealt with by the lower Court, not, as it apparently was 'presented to it, and in presented here, with reference to the general incapacity of a person whose upanayanam has been performed, for adoption, but with reference to the effect of the upanayanam as introducing him into the gotra of his adoptive family and the impossibility of his acquiring any further rights in it, in case a subsequent adoption should be made. To such an argument the answer would be simple, that either the upanayanam did introduce him into the new gotra and fix his position there, a new adoption being superfluous, or that it did not, and there would be no obstacle to an adoption which would do so.

24. The argument, as it is put forward here, involves, it is plain, firstly, that the upanayanam, although celebrated by the first defendant on the incorrect assumption that the second defendant had entered her family and become her son, was a valid performance of the ceremony, and, secondly, that no person, who has undergone upanayanam, can be adopted into another gotra, inasmuch as his undergoing the ceremony in the gotra in which his spiritual duties are to be performed is an indispensable qualification for their performance. On both points we have been referred to the opinion expressed in Bhattacharya's Hindu Law, Third Edition, Volume I, page 456, that

even if the upanayanam and marriage are performed in the family of the adopter, the informally adopted boy will not lose his rights' in the family of his natural father 'and that' the ceremony of upanayanam performed by the adoptive father would be valid, as if performed by a volunteer priest.

25. On the second point above specified, this cannot be accepted since the decision in Viraragava v. Ramalinga I.L.R.(1886) , Mad., 148 proceeds on, the assumption, which apparently was not and has not since been contested, that a boy who has received upanayanam outside the gotra cannot enter it by adoption. On the first point, which alone remains, the opinion of the learned author, in support of which he adduces no authority, is contrary to the decision of Colville, C.J., quoted by him, in Sreemutty Raj Coomaree Dasi v. Nobo Coomar Mullik 1 Boulnois, 137 and also to the view taken in Sanskrit texts of good repute, of which we have been supplied with private translations, accepted by both sides. Thus, in the Dharma Sindhu, Nirnaya Sagara Press Edition (a work referred to as authoritative in Mandlik's Hindu Law, Introduction, lxx) at page 161, reference is made to one kind of upanayanam as that which is re-done on account of the first ceremony being inefficacious by reason of a defect in any of its parts, such as the time; and again at page 150, and in the Nirnaya Sindhu (a work cited in Trevelyan's Hindu Law, page 17) at page 244 there is the dictum.

The father alone should perform the upanayanam of his son or in his absence the grandfather and in his absence the elder brother.

26. In the Vaithianatha Dikshitiyam, Varnasrama Kanda, Kumbakonam Grandha Edition, a work referred to in Viraragava v. Ramalinga (1886) I.L.E., 9 Mad., 148 , it is said, at page 179:

The father is the primary or principal person entitled to perform Upanayanam' and at page 172 (for the performance of Upanayanam) only in the absence of any Sagotraja (person of the same gotra) is a person of a different gotra to be sought for.

27. Lastly, and this is important with reference to the last portion of Mr. Bhattacharya's opinion, the Smriti Chandrika, Mysore Government Edition, lays down at page 88 that.

he is called Guru, who does all the Samskaras (ceremonies) beginning with the Nisheka (nuptials) and ending with upanayanam and gives him (the boy) instruction in the Vedas. Here Gurubood belongs to the father alone and to nobody else. Thus it is established that the father alone is competent person to perform upanayanam and other ceremonies... But that which is said that an Acharya, (voluntary priest) performs the upanayanam is only applicable, when there is no father or when he is disqualified, For there in no reason for leaving out a competent father.

28. Plaintiff has not met these extracts by citation of others and their result, which I find no difficulty in accepting, seems to me to be that an upanayanam will not be valid unless performed by the father, or in his absence another kinsman in the family to which the boy concerned actually belongs; that his upanayanam performed in a family, which be had not in fact entered, would be invalid; and that such an upanayanam can and should be performed again. This entails that the irregular performance of an upanayanam in a family, into which the boy is wrongly believed to have entered, is a nullity and is no bar to his subsequent adoption.

29. The result is that the lower Court's decision cannot stand, and that we must in order to the disposal of the case call on it to return findings on the issues not yet dealt with, Nos. 9, 10, 12, 13, 16. The findings will be returned on the evidence on record within two months after the re-opening of the lower Court. Seven days will be allowed for filing objections.

Phillips, J.

30. I agree and have nothing to add.

31. [Accordingly the Temporary Subordinate Judge of Rajah-mundry submitted findings on the following issues:

(9) Whether the adoption of a daughter's son is illegal and invalid according to Hindu Law

(10) Whether the custom of adopting a daughter's son or a sister's son obtains among Brahmans throughout the Madras Presidency or whether, as contended by plaintiff, it obtains only in the southern districts of the Presidency and does not obtain in the Andhra or Telugu portion of the Presidency?

(12) Whether the circumstances in paragraph 6 of the plaint are true, and if so, whether they render the second defendant's adoption invalid?

(13) Whether the succession to the estate of Vegayammapeta is governed by the law of lineal primogeniture?

(16) Whether the adoption is contrary to the provisions of the Impartible Estates Act?

32. The learned Subordinate Judge found, on the ninth issue, that the adoption of a daughter's son among the three regenerate classes was invalid under the Hindu Law; on the tenth issue, he went through a large mass of evidence as to custom adduced by the defendants and the counter-evidence let in by the plaintiff and came to the conclusion that the custom of adopting a daughter's son or a sister's son obtains among Brahmans of the Andhra or Telugu portion as in the rest of the Madras Presidency. The Subordinate Judge examined a large number of witnesses on the side of the defendants who proved as many as 65 instances of daughter's sons and sister's sons being adopted both among the Niyogi Brahmans of the Godavari district in the Andhra Country, to which the parties to the suit belonged, as well as among the Oriya Brahmans of the Ganjam district, some of whom had long settled in the Godavari district. The instances relating to Andhras were as many as 28, the rest relating to Oriya and other Brahmans. On the twelfth issue, the Subordinate Judge held that the allegations in paragraph 6 of the plaint, as to plaintiff being regarded as heir to the last male owner and performing his Shradh and other ceremonies and managing the properties, were substantially true, but that they could not render the second defendant's adoption invalid, if it should be held otherwise valid. On the thirteenth issue he held that the succession to the plaint estate was governed by lineal primogeniture. On the sixteenth issue, he held that the adoption was not contrary to the provisions of the Impartible Estates Act.

33. On receipt of these findings the Judgment of their Lordships was delivered by:]

Oldfield, J.

34. No objection has been taken before us to the findings on issues 12, 13 and 16, which are against plaintiff, or to the finding on issue 9 in his favour that the adoption of a daughter's son is invalid under Hindu Law. Argument has been confined to the finding on issue 10 that custom authorizes such an adoption among Telugu Brahmans, such as the parties. We concur in that finding and in the lower Court's reasons for it and therefore deal shortly with the objections advanced here against it.

35. The Telugu country begins roughly north of the City of Madras, being bounded on the South by the Tamil districts and on the north by the Oriya, though there is, particularly in the case of the latter, no sharp division. The materials before the lower Court consisted, firstly, in general evidence on the side of plaintiff, that such adoptions wore not recognized as valid by Telugu and Oriya Brahmans, secondly, on the side of second defendant, in evidence, that they had taken place in a sufficient number of instances in the Telugu and Oriya country to establish a custom.

36. The general evidence consisted in a number of statements, Exhibit HH series. But it was inconclusive in the case of two witnesses, who merely said that the adoption of a sister's son was avoided in their families on occasions on which it would have been possible, as contrary to law and custom. In other passes, it consisted only in assertions by persons described as pandits, who, if their competence in this branch of knowledge is presumed, would ordinarily be prone to deprecate any preference for custom over adherence to the injunctions of the texts, by the study of which they live. In fact, some of them, Dasaradha Padhi, Appanna Sastri, Lokhonada Misra and Ananta Doss, mentioned instances of the adoption of a sister's son without referring to any consequent social or religious stigma being imposed. Nothing of any value was established by these witnesses.

37. The lower Court has dealt with the evidence relating to the instances relied on by the second defendant with great caution, and no objection has been taken to its conclusion that twenty-seven cases of adoption of a daughter's son in the Telugu districts have been proved. It is said that some of these cases are inconclusive, because they are recent, But the proportion of recent cases is not unduly high in view of the greater case with which evidence relating to them would be obtainable; and there is no suggestion that in any the adoption was made to create evidence for this trial. It is pointed out next that in some cases there was, besides the adoption, a document transferring property to the adopted son, consistently with the existence of doubt as to his position. But it is possible that this was due to a desire to prevent future litigation, and this is probable in at least three cases in which the adoptive fathers wore persons of marked respectability, a member of the Legislative Council, a well-known vakil, and a person on whom Government had conferred the title of Diwan Bahadur. Then it is argued that some, who speak to these adoptions, describe them as authorized by law, not custom. But these descriptions are so plainly wrong, and the competence of those concerned to give them 30 small, that they may safely be ascribed to a natural and very ordinary desire to make no explicit innovation and to their inability as laymen to draw a legal distinction. Lastly, in six cases there is the objection that the families in question are those of Tamil immigrants into Telugu country and that, as they have brought their Tamil customs with them, their adoptions add nothing to the argument from the instances afforded by Telugu families proper. It does not however appear from the evidence that in any case the immigration was recent or that the adoptions in question were regarded with dislike or suspicion in their Telugu surroundings. Such a custom would be followed only at long intervals and on rare occasions. There is, therefore, no sufficient reason for discarding these six cases from consideration.

38. Argument has next been directed against the relevancy and weight of the remaining twenty-two instances relied on, on the ground that they occurred, not in Telugu, but in Oriya families; and a similar argument has been attempted against the relevancy of the fact that adoptions of a daughter's son were held to be authorized by custom in the Tamil districts in Vaidinada v. Appu I.L.R.(1886) , Mad., 44 . The exhaustive judgment in that case no doubt dealt statedly only with the southern districts; and reference has also been made to the fact that it was to some extent founded on the commentary of Vydianadha Dikshitar, a work alleged to be authoritative only in them. But there is no reason for supposing that the scope of the decision was limited to the southern districts for any reason but that the case before the Court came from Tanjore, and there had naturally to be some limit to the collection of instances in support of the custom relied on; the argument from the reference to Vydianadha Dikshitar is answered by the observation that his commentary was afterwards treated as authoritative in Brindavna v. Radhamani I.L.R(1889) ., Mad., 72, a case from Ganjam, a Telugu and Oriya district; and in fact in Vayidinada v. Appu I.L.R(1886) ., Mad., 44 one instance relied on was from another Telugu district, Cuddapah. As regards the Oriya instances before us, there is nothing to support a distinction between the custom they support and that of the Telugu country. It has been pointed out that the territorial division between Telugus and Oriyas is particularly indefinite. The witnesses for plaintiff, of whom Dasaradhi Padhi already referred to is the dearest, refer only to differences in ritual, to marriage with maternal uncle's daughter and to fish diet as peculiar to Oriyas, not to anything of significance in the present connexion. Although Tamil, Telugu and Oriya Brahmans differ in language and residence, all alike, so far as we have been shown, agree in acceptance of Hinduism and of the Mitakshara Law; and we can see no reason why the judicial recognition in Vayidinadha v. Appu I.L.R(1886) .,Mad., 844 of, the custom now in issue as binding on the first mentioned, and the evidence of instances in which it has been followed among the last, are not relevant and are not of material weight.

39. It remains to refer to six instances of adoption of a brother's daughter's son, which have also been proved. We need say only that the validity of such adoptions was regarded as standing on the same footing as that of adoptions of a daughter's son in Vayidinadha v. Appu I.L.R(1886) ., Mad.,844 and that in both the natural mother would be equally debarred from marriage with the adoptive father.

40. We, therefore, accept all the fifty-five instances, which the Lower Court held to be established, as relevant and, in the absence of anything to rebut the inference from them, we regard them as sufficient to prove the custom alleged. It should be added that this conclusion is in accordance with the opinion in placitum 88, Strange's Manual of Hindu Law, 2nd Edition, page 22, the learned author abandoning therein the limitation to South India expressed in placitum 92 of the first edition of his work, page 17, and referring to a proceeding of the Sadr Court as his authority. We accept the Lower Court's finding, and therefore we allow the appeal, dismissing the suit with costs throughout.


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