1. Suit to set aside an adoption and to set aside certain alienation by the first defendant, a Hindu widow and heir of the last male owner Brahmanna, who died, according to the evidence (D.W. 1), 50 years ago. The Subordinate Judge dismissed the suit. The plaintiffs appeal.
2. The plaintiffs and 4th defendant are the daughter's sons of the deceased. The first point raised by the appellant is that the adoption is invalid as the assent of the nearest male heirs, of Brahmanna via., the daughter's sons (plaintiffs and 4th defendant) was not sought by the first defendant. In Southern India, in default of husband's authority, a widow may adopt with the consent of her husband's kindred. The question is whether the daughters' sons, when they happen to be the nearest heirs, should be consulted. Up to Vadreva Ranganayakammagaru v. Somasundara Rao (1921) 43 Mad. 876 the point has not arisen here and it could not arise elsewhere.
3. The reasons why such a point did not arise till now are obvious. It is very rarely that a grandmother adopts to the detriment of her daughter's sons. If she has only one daughter's son, she would adopt him in preference to others, or not adopt at all. If there are more than one, she would not adopt at all, as she would prefer the daughter's sons to succeed equally. As for the spiritual purposes of the husband, a daughter's son is capable of conferring such spiritual benefit so nearly well as the son, that consideration does not present any difficulty.
4. It is only where some motives prevailing over these usual considerations, that an adoption of a person other than the daughter's son can take place to the detriment of a daughter's son. The case in Vadreu Ranganayakammagaru v. Somasundara Rao (1921) 43 Mad. 876 is a case of an impartible Zamindari, and the eldest of the daughter's sons was the next heir. The widow passed over him and adopted another daughter's son.
5. In the present case, a daughter's daughter's son is adopted. Thus, even in these cases where the point, whether the consent of a daughter's son who is the next heir is necessary, is raised, the actual adoption is of a descendant.
6. The question was not raised in the Court below and the respondent argues that it ought not to be allowed to be raised. The appellant points out that it is for the defendant who sets up an adoption to allege and prove the facts necessary for its validity and that the written statement relies on the assent of Seshayya and Narasayya (nephew arid grand nephew of the deceased)(Ex. 1) and on the fact that the consent of Kotayya, another nephew, was asked but refused. He argues there is no suggestion that the daughter's son's consent was sought and if, therefore, it can be held, as a matter of law, that the assent of the daughter's son, when he is the next heir and sui juris is necessary to validate the adoption, respondent cannot be prejudiced by the point being allowed to be raised at this stage.
7. I am inclined to agree with the appellant's contention, provided that opportunity is given to the respondents, now that they state it is their case that the daughter's Sons also have been consulted, to prove it; for, the plaintiff has limited his attacks in the plaint to certain grounds, one of which is not the non-consultation of the plaintiffs and 4th defendant.
8. I will now proceed to consider the point of law raised. The leading case on the doctrine of the sufficiency of assent of kinsmen to validate an adoption in Southern India is The Collector of Madura v. Moottoo Ramalinga Sethupathy 1867 12 M.I.A. 397. The conclusion stated at page 440-441:
Upon the whole, then, their Lordships are of opinion, that there is enough of positive authority to warrant the proposition that according to the law prevalent in the Dravida country, a Hindu widow, not having her husband's permission may, if duly authorized by his kindred, adopt a son to him.
9. In reaching this conclusion, their Lordships point out (page 437) that the Mitakshara, Dattaka Meemamsa and Dattaka Chandrika and Paragara Medhawaya are all silent and that the Smrithi Chandrika furnishes only an argument by analogy. They brush aside (page 438) the Mayukha and Kausthubha, as Mahratta treatises and the Viramitrodya as a Benares authority. Their Lordships rest their conclusion practically on a single text, the Dattaka Meemamsa of Vidyaranya, which 'clearly and explicitly declares the right of the widow to adopt with the authority of her father-in-law and whatever other kinsmen of her husband may be comprehended, under the et cetera.' This is strengthened by reference to the opinions of pundits, and a decision in Appaniyengar v. Alemaloo Ammal  M.S.U. 5 and 6 and French Gases 442, their Lordships remark:
The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of proving the consent of all reversioners.
10. Relying on this dictum, the object of which was to establish that there is no ground for saying that the consent of every kinsman, however remote, is essential, appellant has referred us to the texts relating to the question, who should protect a woman at various stages of her life, in Manu, V. 148 and IX (3), with Kulluka Bhatta's commentary on it, where ho refers to Paksha Dwaya (i.e., both sides) after quoting Narada using the word Sapinda (S.E. Vol, 33 p. 196) Colebrooke's Digest, Vol. II, page 111 where he translates the word Sapinda in Narada's text, Yajnavalaka-Acharya Adhyaya, Section 85 (Sir Sivaswami Iyer's translation in 1 M.L.J. 278 Mindik p. 172; translating the word '(innti ' as kinsmen), with the commentary of the Mitakshara on it. (Panini Press Edition Allahabad, p. 166) and the commentaries of Balambhatta and Apararka and contends that 'Guati' and 'Sapinda' in these tex.ts include a gnati and cognate kinsmen. The respondent contends that, though, in later times, these words might have a wider significance, by including 'cognates' also in the Smritis, they meant only 'agnates'. I do not think it necessary to discuss these texts, or their interpretations, as their Lordships, beyond referring to ' the presumed incapacity of women for independence,' do not refer to these texts and do not say that the kinsmen whose consent should be sought, or those who are mentioned in the sacred texts, as the persons on whom she would be dependent. In Manu, only the son is mentioned as her advisor, after the death of the husband. Only the commentators of Manu mention the kinsmen because, I presume, it is more a matter of common sense than of interpretation of any text.
11. In my opinion, all that we have to do is to examine the development of the conclusion stated by their Lordships, in the Ramnad case, at pp. 440-1, and reached with reference to Vidyaranya's Dattaka Meemamsa, which mentions 'Father-in-law etc.'
12. The next decision on this matter is Jonnalagadda Venkamma v. Jonnalagadda Subrahmanian (1907) 30 Mad. 50. In that case, there were two brothers who were the next heirs after the widow. Lord Robertson says at p. 26:
'The appellants have failed to justify the widow in omitting to ask for the authority of a person holding so important a position in the family as did the 1st respondent.' But the failure to consult one of the two nearest kinsmen has not been justified.
13. I have not referred to the decision of the Privy Council between 1869 and 1907, viz., Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo (1876) 1 Mad. 69, Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) 1 Mad. 174, Ramasami Aiyan V. Venkatarama Aiyan (1878) 2 Mad. 91, Ganesu Batnam Aiyar v. Gopala Ratnam Iyer (1878) 2 Mad. 270, and Suryanarayana V. Venkataramana (1906) 29 Mad. 382 for they throw no light on the question, whether the assenting kinsmen should be agnates only and cannot include cognates. Such a question can arise, only, if the nearest heir is the daughter's son, all other cognates being heirs in the Mitakshara law, only after all agnate sapindas are exhausted. In Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo (1876) 1 Mad. 69 the family was a joint family and in Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) 1 Mad. 174 and Suryanarayana v. Venkataramana (1906) 29 Mad. 382 the husband had authorised. So far there is nothing in the decisions of the Privy Council to suggest that the assenting kinsmen cannot include a cognate, even when he happens to be the nearest heir. Prima facie, it would seem that no such proposition can be laid down; for in a case where there are no agnates, it will follow that the widow cannot make an adoption, though she may have plenty of advisers, such as a maternal uncle, a daughter's son, a sister's son, a maternal grandfather, or a another's sister's son (all cognate sapindas). The next case is Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97. Does this case Jay down that the assenting kinsmen should be agnates and not cognates'? In my opinion it does not. The point itself did not arise in the case. The respondent relies on a sentence at p. 267:
The Ramnad cases established the proposition that, under the Dravidian Branch of the Mitakshara Law, in the absence of authority from her deceased husband, a widow may adopt a son with the assent of his male agnates in the Dravida country, where such law is in force.
14. I do not think that any stress should be laid on the word 'agnate' in this sentence. In the first place, the Ramnad case did not lay down that the assenting kinsmen should be agnates. In the second place, the sentence does not say that unless agnates consent, the adoption cannot be made. All that it says is that an adoption may be made, with the assent of agnates, which is strictly true in most of the cases that arise. I presume that the word 'agnates' is used, because it is they that have to consent in the majority of the cases that arise. This is supported by his Lordship's later sentence at p. 269:
In the absence of authority from the husband, the valid exercise of the power by a Hindu widow in the Dravidian country is conditioned on the assent of her husband's sapindas.
15. The word 'Sapindas' whatever its moaning in the Smritis may be, now certainly includes agnate and cognates see Right Honourable Mr. Ameer Ali's judgment in Ramchandra Martand Waikar v. Vinayek Venkotesh Kothekar A.I.R. 1914 P.C. 1. It would be as fair to infer from his Lordship's sentence at p. 267, that his Lordships intended to lay down that the assenting sapindas should be agnates as to infer from Lord Moulton's judgment in Narasimha v. Parthasarathy (1914) 37 Mad. 199
In this part of India, at all events, a widow has no power to adopt a son to a deceased husband, except by express authority given by him in his lifetime or by will.
16. That no adoption can be made with the assent of husband's kinsmen. The sentences referred to in Jalam Dhar Thakur v. Jharula Das A.I.R. 1914 P.C. 72 and Narasimha v. Parthasarathy (1914) 37 Mad. 199 are merely succinct statements of the law not framed with reference to points that did not there arise.
17. On the other hand, the case in Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97 lays down clearly that the next heirs must be consulted. At p. 272 his Lordship says:
Division does not affect her personal dependence or given her an independent status to alter by her own authority the succession to the estate which she takes as the widow of her husband. She is still dependent for counsel and protection upon the nearest sapindas of her husband who are the most closely united to him by ties of blood, or to use the language of Hindu lawyers 'by community of corporal particles.' The father of the deceased, if still alive, continues to be her ' natural guardian and venerable protector.' He has further more a direct interest in the protection of the estate, for in case of her death, without leaving for surviving a daughter or the mother of her deceased husband, he has a right to the reversion. His authorization is therefore, essentially requisite to the validity of an adoption by her to her husband. If there is, no father, the divided brothers take his place by virtue of the tie of blood as her husband's nearest sapindas; they become her natural guardians and the protectors of her interest. They also have an interest in the protection of the inheritance. In the absence, then, of the father, the assent of the divided brothers is equally requisite for the validity of the widow's adoption. If a majority assent and one refuses, his objection may be discounted. But the absence of their consent, or in the case there is only one, of his consent, cannot be made good, by the authorization of distant relatives remotely connected, whose interest in the well-being of the widow, or the spiritual welfare of the deceased, or in the protection of the estate, is of minute character, and whose assent is more likely to be influenced by improper motives.
18. Again at p. 273:
It is true that, in the judgment of this Board, in the Ramnad case Collector of Madura v. Moottoo Ramalinga Sathupathi 1867 12 M.I.A. 397, some expressions are used which might imply that the question of reversionary interest forms only a secondary consideration, in determining what sapindas assent is primarily requisite, but the remarks that follow as to the right of co-parceners in an undivided family to consider the expediency of introducing a new co-parcener, coupled with the observations of the Board in the subsequent case of Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) 1 Mad. 174 show clearly that rights to property cannot be left out of consideration in the determination of the question.
19. In the latter case of Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) 1 Mad. 174 the Board observes as follows:
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, in order to defeat the interest of this or that sapinda, but, upon a fair consideration of what may be called, a family council, of the expediency of substituting an heir by adoption to the deceased husband.
20. And an eminent Hindu Lawyer, dealing with the question, whose consent is requisite to the validation of an adoption, when the husband is separate, remarks that an adoption is more a temporal than a spiritual institution, there being no spiritual reason for adoption, if the deceased left a fraternal nephew; and that the requisites of a valid adoption are all temporal; therefore, the spiritual consideration should not be allowed to influence the judgment regarding the secular essential. And he then goes on to add:
Some light is thrown on the point by the decisions relating to alienations by widows with the assent of the next heir' : Golap Chandra Sastri, on the Hindu Law of Adoption. The reasons which make the assent of divided brothers a requisite condition apply mutatis mutandis to the case of the nearest sapindas other than brothers.
21. These paragraphs distinctly lay down : (1) The nearest heirs, who take the estate after the widow are the proper persons to consent : (2) Eights to property cannot be left out of consideration in the determination of the question. Temporal considerations should have as much weight as spiritual considerations. (3) The analogy of the assent of next heirs to alienations by widows throws good light on the question. All these considerations lead to the conclusion that in a case where a daughter's son is next heir and is a major and otherwise competent to advise, he ought to be consulted. There is nothing in all the passages in Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97 to show that the considerations mentioned there are to be overlooked, if the next heir is a daughter's son and must be applied only to agnates.
22. In this state of authorities, the actual point arose for decision in Viswasundara Row v. Somasundara Rao (1921) 43 Mad. 876 My learned brothers Oldfield and Phillips, JJ., held that the daughter's son need not be consulted. With great deference, I cannot agree with them. At. pp. 883-4, they discuss the texts relating to the dependents of women. The words 'gnati' and 'sapindas' are admitted to be ambiguous. It is said that the primary significance of 'gnati' is agnates. I have already said that the source of law is not these texts, but the Ramnad case resting in Vidyaranya's Dattaka Meemamsa. The dictionaries show that 'gnati' includes 'cognates' also, (Wilson's Sanskrit Dictionary, Monier Williams, Wilson's Glossary, p. 580). Their Lordships refer to the sentence at p. 1004, in Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97 I have already dealt with this fully. They then refer to the analogy by assent to alienations (pp. 885-889), I cannot agree with most of their observations, for instance, (1), where it was sought to be inferred from Rangasami Gounden v. Nachiappa Goundan A.I.R. 1918 P.C. 196 that the consent of reversioners to alienate is not very important, because, sometimes it can be valid independently, of assent;
(2) when it is stated that the daughter's son is not concerned with the spiritual interests of the husband-I shall deal with this presently ;
(3) when it is said that the daughter's son is generally a minor and his advice is useless. The reply is that only when kinsmen are majors they act as advisers. If the daughter's son is a minor, the next heir should be consulted.
(4) The irreconcilability of the position of the father-in-law with the principle of the nearest heir. The father-in-law's position is an exception, on account of his position in the family.
(5) Spiritual considerations should be dominant.
(6) Golap Chandra Sarkar Sastri's opinion quoted by the Board, in Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97 has not been approved of by them.
23. Only one of these points require detailed examination, i.e., the second. It cannot be that the learned vakil for the appellant in Viswasundara Rao v. Somamndara Rao (1921) 43 Mad. 876 who is a Hindu and Sanskrit scholar could have made any admission that a daughter's son has nothing to do with the spiritual concerns of a person, and we are informed that no such admission was made. Next to the son, he is the best male to perform the funeral and annual ceremonies of a deceased.
24. In Sarvadhikari's Law of Inheritance (Tagore Law Lectures 1882), a translation of the Dharma Sindhu (a work recognized as authoritative on ceremonial matters even in Southern India) gives the list of the persons competent to perform Sraddhas, and mentions the daughter's son, after the daughter and before full brother: p. 85). At p. 90, a translation of Sradha Viveka of Rudradhara is given; it mentions the appointed daughter's sons, as second in rank and before certain classes of sons. At pp. 92, 93 is given the list in Bengali from Bhava Deva.
25. The list for Western India is given at p. 95 from the Nirnaya Sindbu, at p. 96; the daughter's son is mentioned after undivided brother and daughter and before divided brother. It has often been said that the right to perform ceremonies follows propinquity and heirship, under the Mitakshara system, while, in the Dayabhaga Law, the heirship depends on the spiritual benefit; whether this is so or not, in both systems the result as to the daughter's son is the same, that he is the heir and next to the son, the best person to perform the funeral ceremonies.
26. In Bengal, his position is so important that the daughtsr's son of other agnate members of the family of the propositus takes before agnate Sapindas, descended from a higher common ancestor (Mayne's Hindu Law, Section 583; and Digumber Roy Chowdhry v. Moti Lal Bundopathyu (1883) 9 Cal. 563 overruling Kashee Mohan Roy v. Raj Gobind Chuckerbutty (1875) 24 W.R. 229. In Hindu Law texts, relating to marriage, a person is advised not to marry a brother-less damsel, lest the first born son will be claimed as Karta for performing ceremonies by the father of the girl: see Bannerjee's Marriage and Stridbanam, p. 55, citing Manu III, 8, 9 and 11). It is unnecessary to pursue this subject further.
27. I am unable to agree with the decision in Viswasundra Rao v. Somasundara Rao (1921) 43 Mad. 876. My conclusion is supported by the later decision of the Privy Council in Kristnayya v. Lakshnipathi (1920) 43 Mad. 650, where Viscount Cave says:
It was decided in the Ramnad case that under the law here referred to a Hindu widow, although not authorized by her husband to adopt a son for him, may nevertheless make such an adoption, with the consent of the sapindas.
28. The terms 'Sapindas' includes' 'agnates' as well as ' cognates.' The later passages at p. 654, where it was said that a substantial majority of those agnates, nearest in relationship' should consent, uses the term 'agnates' because it is the case being discussed. It starts with where there are agnate relations closely related to the deceased and there were no daughter's sons in that case.
29. If the case is to be disposed of on this point, a finding has to be called for on the question whether plaintiffs and fourth defendant have been consulted. The necessity for doing so at present depends on our conclusions on the other points in the case.
30. The second point argued is that Kotaya one of the two nearest agnate reversioners was not consulted. Kotaya denies that he was consulted as (P.W. 5) D. Ws. 6, 10 and 12 say that he was asked to give his consent. D.W. 6 does not seem to be a reliable witness and is probably also interested. D.W. 12 is 1st defendant's granddaughter and her cross-examination shows that her evidence on this is hearsay D.W. 10 is confusing the invitation for the adoption with the asking of his assent, Ex. II, a registered letter said to have been sent to Kotaja and refused by him, does not refer to any prior asking. The omission is very unlikely and falsifies the depositions of D.Ws. 6 and 12. The respondent's Vakil contends that after knowing the law as laid down in Venkamma v. Subramaniam (1907) 30 Mad. 50 it is unlikely that the widow would have omitted to ask Kotaya. This is true, but she and her advisers might have thought Ex. II was enough. Now there is no doubt Ex. II was sent by registered post and returned unopened. It bears an endorsement' the addresses does not want it. The post peon is not called. The correctness of the endorsement cannot be presumed. But it is immaterial, whether the letter was actually offered to Kotaya and refused by him, or whether, as sought to be made out for the plaintiffs (see D.W. 2 in cross-examination), that Kotaya was not in the village at about that time. The fact remains that the letter was never opened by Kotaya. It is a closed letter and not a card. One cannot presume that he knew what it would contain. It is difficult to hold that a registered letter to a person, containing a request to assent to an adoption the letter being never opened by him and returned is a valid consultation. It is generally known that a registered letter is a somewhat unpleasant form of communication. In the last resort, it may have to be used. It is possible that the relations of the parties had already arranged themselves into factions. The 1st defendant knowing or thinking, for reasons of her own, that Kotaya would not authorise the adoption, never consulted him; but to satisfy the requirements of the law, Ex. II was sent at the last moment, under legal advice. It is noteworthy that it was sent on 10th February, 1919 after Ex. I, by which the assent of Seshayya and Narasayya was given had already been obtained on 9th October, 1918. One would suppose that all the kinsmen would be asked simultaneously or nearly so. The result is that the assent of Seshayya is not enough : Venkamma v. Subramaniam (1907) 30 Mad. 50. One of two, even if Kotayya was asked, cannot form a majority : Veerabasavaraju v. Balasurya Prasad Rao A.I.R. 1918 P.C. 97 Rama Rao v. Narasimha Nayanim Varu (1915) 2 L.W. 286 : much less, a substantial majority : Kristnayyav. Lakshmipathi (1920) 43 Mad. 650. The assent of Narasayya cannot help to cure the defect, for he belongs to a remoter class than Kotaya and Subbayya Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97 applied in Kristnayya v. Lakshmipathi (1920) 43 Mad. 650.
31. The next point argued is that the assent of the sapindas was not given bona fide. It, appears that the 1st defendant conveyed the lands belonging to Brahmanna, worth Rs. 5,000, by a deed dated 25th February, 1908, to the 3rd defendant, (mother of adopted boy) and the 4th defendant son-in-law of the 3rd defendant, brother-in-law of the adopted boy (vide paragraph 4 of the plaint not denied in the written statement.) Seshayya, the assenting sipinda (D.W. 1) says that ever since then, the 3rd and 4th defendants have been in possession and enjoyment of the properties given to them and that the plaintiffs have been questioning these transactions all these days. It is true that the 4th defendant in the course of the argument before us, was supporting the plaintiffs. He gains either way and his attitude is immaterial. It is clear, on the facts of this case, that the whole object of the adoption in this case (an adoption not being found necessary for 50 years after Brahmanna's death and there being daughter's sons to perform his annual ceremonies) was to screen the alienation to 3rd and 4th defendants for whom the 1st defendant has taken a fancy in preference to plaintiffs. It may be that the motives of the widow may not be questioned: Ramachandra v. Mulji Nanabhai (1915) 2 L.W. 286, a point as to which I wish to express no opinion.
32. Nowadays, most adoptions by widows are influenced by only secular motives which generally are to benefit this relation or that boy, for whom the widow happens to have a partiality. My own experience is that in modern adoptions by widows almost always the spiritual motive (the welfare of the husband's soul) is absent and the secular motive is one of affection for a particular boy, among near relatives or partiality for such relations. No widow's adoption can stand scrutiny, if her motives are important.
33. But the Courts are bound to examine the sapinda's motives, in giving the particular consent. In this case, the adopted boy is the nephew of Seshayya, and brother of Nirasayya, and the object of adopting him is to screen the alienation to his mother and brother-in-law from attack. In these circumstances, the assent is not given bona fide. There is the further attack against; it on the ground that it was purchased.
34. The Ramnad case suggests that it ought not to be purchased : The Collector of Madura v. Mootto Ramalinga Satthupathy (1898) 22 Bom. 558, Danakoti Ammal v. Balasundara Mudaliar (1913) 36 Mad. 19 and Rami Reddi v. Rangamma : (1901)11MLJ20 ; and it ought to be given in the exercise of an independent judgment, on the expediency of an adoption; Har Shankar Partab v. Lal Raghuraj Singh (1907) 29 All. 519.
35. In these days every consent by an interested sapinda is probably purchased. But such a conclusion must rest on evidence and not on conjecture. The readiness with which D.W. 1 answers in cross-examination that he was promised a payment of Rs. 500 makes me suspect the bona fides of the answer. One who gave his consent for a corrupt consideration will not hesitate to deny it in the witness-box and I suspect that the defendant's complaint, that he was won over by the opposite side and has turned hostile, is well founded. I may also say that, if there was a consideration for the purchase, it is likely that it was more substantial than a mere promise of payment. All that one can say is, not that it is proved that his consent was not purchased, but it is difficult to act on his evidence.
36. If it is dearly proved in this case, that the consent was obtained by the promise of a payment, I would say it was corruptly obtained. I am not inclined to share the doubts of Schwabe, C.J., in Parthasarathi Reddy v. Kandaswami Reddy A.I.R. 1923 Mad. 711.
37. The next point argued is that the authority is too general, as it purports to authorise the adoption of ' any boy at any time.' This contention is supported by the observation in Suryanarayana v. Venkataramana (1903) 26 Mad. 681 and Veera Basvaraju v. Balasurya Prasada Rao (1914) M.W.N. 502. I am not inclined to agree with the observation in Nagarampalli Kamesam v. Nagararhpalli Batcharnma (1914) 1 L.W. 511, in which the dictum in Suryanarayana v. Venkataramana (1903) 26 Mad. 681 was sought to be explained. The Privy Council left the point open in Kristnayya v. Lakshmipathi (1920) 43 Mad. 650.
38. In my opinion there is an essential difference between the authority of the hus-band and the assent of a sapinda. The former is intended to be exercised only after the death of the husband. The latter is intended to be used at a reasonble time after the consent is given. When the interval is short the death of the sapinda may not matter, but a sapinda's assent is not to be pocketted by the widow and used long after it was given when entirely different considerations as to the expediency of the adoption may apply. Again, the boy to be adopted ought also to be referred to the consideration of the sapinda. If a sapinda gives an assent in this form:
I think an adoption is expedient and I am willing to authorise it. But before I give my assent finally, I would like to know the boy whom you choose and I am not willing to authorise the adoption of any boy.
39. It is a proper and desirable reservation to make. A boy chosen by the widow may be very undesirable. He may have physical and moral defects and so unfit to be the heir to a particular estate. I therefore hold that the consent is too general and on that ground is invalid. On the above findings, the contention of the respondent that Kotayya's refusal was for improper motives, need not be considered. Assuming that Kotayya was consulted orally (as deposed to by D.Ws. 6 and 12) we do not know what his reasons for the refusal are. In this case, there are so many good reasons for refusing, that it is impossible to presume that his reason must have been improper; e.g., (1) The adoption is sought ' after long delay to enable the widow to alienate the property.' This is a good reason for refusal Rama Rao v. Narasimha Nayanim Varu (1906) 29 Mad. 382. (2). The authority sought is too general. Nor am I prepared to say that any refusal, unaccompanied with reasons is an improper refusal. If the observations in Venkatakrishnamma v. Annapumamma (1900) 23 Mad. 486 meant to lay down such a general proposition, I cannot agree with them : see Rama Rao v. Narasimha Nayanim Varu (1915) 2 L.W. 286 It is of course, a different matter, if the sapinda was asked to state his reasons and declines to state them, either at the time or later on, in the caurse of the judicial proceedings and this is all that Venhatakrishnamma v. Annapumamma (1900) 23 Mad. 486 seems to lay down. In the present case, D. W. 6 says that 1st defendant did not ask Kotayya his reasons for the refusal. Only if a majority consent, the refusal of the minority may be presumed to be based on improper grounds and hence ignored. Veerabsavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97 and Rama Roo v. Narasimha Nayanim Varu (1915) 2 L.W. 286.
40. I am of opinion that, for all the reasons above given, the assent of the sipindas in this case is invalid. I we aid therefore allow the appeal with costs throughout.
41. I have hid the advantage of reading my learned brother's judgment and entirely agree that plaintiffs (appellants) must succeed on the facts. Of the two nearest agnates, it is not proved that Kotayya was ever consulted, and in my opinion, the consent of Seshayya was corruptly obtained His statement, as D.W. 1, that he was promised Rs. 500 for consenting to the adoption was only elicited in cross-examination, and I think it must be accepted as true.
42. I confess to considerable doubt as to whether the point of law arises on the pleadings. The plaintiffs in their plaint never stated that they had not been consulted, and only mention 4th defendant (paragraph 4) as benefitting under the 1st defendant's fraudulent conveyance and therefore presumably privy to her counsels. Assuming however that this question can be raised whether the daughter's son must necessarily be consulted before the widow makes an adoption, in my opinion, it is concluded by the ruling in Vadreu Ranganayahamma Varu v. Somasundara Rao (1921) 43 Mad. 876.
43. For the purpose of the argument, it must be premised that plaintiffs have failed on the facts, and 1st defendant has established that she duly obtained the consent of all her husband's agnates, Kotayya, Soshayya and his nephew Narasayya. Yet, it is argued the adoption must be set aside, because she did not obtain the consent of her daughter's sons-plaintiffs and 4th defendant.
44. Of course, it is not suggested that any such consent is prescribed by the ancient texts. They merely lay down the proposition that a woman must take the advice of her father, husband, or son, and if a widow, of her husband's father and (unless the transactions are wrong) of her own father. Admittedly the precise rules governing her action must be sought for in the reported cases:
It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every such case must depend upon the circumstances of the family, All that can be said is that there should be such evidence of the consent of kinsmen, as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive. The Collector of Madura v. Moottoo Ramalinga Sethupathi 1867 12 M.I.A. 397.
45. This passage is' quoted in Vellanki Venkata Krishna Rao v. Venkata Rama Lakshrni (1876) 1 Mad. 174 and their Lordships add:
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.
46. This passage is in turn quoted in Kristnayya v. Lakshmipathi (1920) 43 Mad. 650 where it is observed:
The reference to a family council gave rise to some doubt, when whether there were agantic 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 honest judgment in the matter.
47. I would emphasize this phrase 'substantial majority of these agnates.' No doubt in the passages quoted above, there are the expressions ' consent of kinsmen' and ' assent on the part of sapindas'; yet the context seems to suggest that ' agnates' are intended, and this last quotation carries the matter beyond all surmise.
48. It is definitely stated that the family council must contain a substantial majority of agnates. And just as in the previous rulings ' kinsmen' has been loosely used for ' agnates,' so in the very next sentence of the passage, from Kristnayya v. Lakshmipathi (1920) 43 Mad. 650 we find:
It must however be added that save in exceptional cases, such as those mentioned above, the consent of the nearest sapindas must be asked : Venkamma v. Subrahmanyam (1907) 30 Mad. 50.
49. The exceptional cases are those where lunacy or distance precluded the presence of a near relative in that council, in which there must be a substantial majority of agnates. And the case referred to Venkamma v. Subrahmanyam (1907) 30 Mad. 50 is the appeal from Subrahmanyam v. Venkamma (1903) 26 Mad. 627 which is entirely a question of consulting gnatis. Considering the reference and the context in which the sentence occurs, I think it may safely be assumed that 'the nearest sapindas again refer only to agnates.
50. This view that agnates were always intended seems to be confirmed by the observations in Veerabasavaraju v. Balasurya Prasada Rao A.I.R. 1918 P.C. 97.
In the absence of authority from her deceased husband, a widow may adopt a son, with the assent of his male agnates, p. 1004.
and 'the father of the deceased continues to be her natural guardian.... If there is no father the divided brothers take his place as her husband's nearest sapindas p. 1009.
51. No doubt in this same judgment (p. 1011), there occurs the suggestion that the assent of the next heir to alienation by widows might form a useful analogy. But I do not find it anywhere laid down, that the consent of the next heir is essential to an adoption.
52. The highest at which I would put it is that cases may occur where to prove its bona fides, the family council would have acted prudently in consulting the daughter's son. There is no inflexible rule ; but there must be good evidence that the widow was actuated neither by caprice nor corruption. Such evidence is best supplied by the proved consent of the nearest agnates of her deceased husband. The consent of the daughter's son would also be valuable evidence; but he is not entitled to be consulted, as he is not a gnati vide Viswasundara Row v. Somasundra Rao (1921) 43 Mad. 876.