P.V. Rajamannar, C.J.
1. In this appeal against the decree and judgment of the learned Subordinate Judge of Madurai dismissing O.S. No. 156 of 1951 on his file, the only question involved is the validity of an adoption which was made by the first defendant Guruvammal Anni to her deceased husband. Kulandaivelu Mudaliar, the husband of the first defendant died on 29th January, 1912, issueless leaving him surviving his widow as his only heir and extensive properties of considerable value. Kulandaivelu who was originally a member of a joint family became divided from his coparceners long before his death. On 25th May, 1951, the first defendant adopted the second defendant, son of the third defendant, to her husband. An adoption deed (Exhibit B-1) was executed on 30th May, 1951 and it was registered on 12th June, 1951. The plaintiffs and defendants 4 to 22 are the agnatic relations of deceased Kulandaivelu. Their relationship will be evident from the following genealogical tree:
Late Chockalinga Mudaliar
Late Renganatha Mudaliar
Late Dhanappa Mudaliar Late Kulandaivelu Mudaliar
| Late Dhanappa Mudaliar
Late Subramania Mudaliar Late Kulandaivelu Mudaliar
| (Died 29-1-1912)
Chandrasekara Mudaliar (P-1) (Widow Guruvammal Anni) D-1
Kanniappa Mudaliar (P-2) Adopted boy Kulandaivelu (D-2)
Saratha Chandrasekharan (P-4)
Late Ranganatha Mudaliar
Late Shanmugha Mudaliar
Late Renganatha Mudaliar | Sankaralinga Mudaliar (D-19)
| | |
Balaguruswami Mudaliar (D-4) | Palani Andava Mudaliar (D-120)
| | |
Renganathan (D-5) | Nagarajan (D-21)
Kasisvwanathan (D-6) | Illankovan (D-22)
Avadiappa (D-7) |
Shanmugham (D-8) |
Gnanaguru (D-9) |
Male Baby (D-10) |
Dhanappa Mudaliar (D-11)
Shanmughasundara Mudaliar (D-12) Avadaiappa Mudaliar (D-14)
Renganathan (D-13) Palaninandavan (D-15)
The first plaintiff, it will be seen, is the nearest presumptive reversioner; the second plaintiff is his son and plaintiffs 3 to 5 are the sons of the second plaintiff. On 4th September, 1951, they filed the suit out of which this appeal arises for a declaration that the adoption of the second defendant by the first defendant to her husband Kulandaivelu Mudaliar was invalid, void and of no effect as against the reversioners. The, learned Subordinate Judge dismissed the suit holding that the adoption was valid. Hence this appeal by the plaintiffs.
2. It is common ground that Kulandaivelu, the husband of the first defendant, did not during his lifetime authorise her to make an adoption. Therefore, according to the law in force in this part of the country, the widow would have no power to make an adoption except with the consent of some one or more of her husband's relations whose consent would according to the authorities be sufficient. It is not in dispute that the plaintiffs and defendants 4 to 22 are the agnatic sapindas of the first defendant's husband. Of them the only adults at the material time were plaintiffs 1 to 2 and defendants 4, 5, 11, 12, 14, 19 and 20. It is established by the evidence that the first defendant addressed letters to everyone of these adult sapindas seeking the consent of each one of them to her adoption of the second defendant. Admittedly none of them except the 14th defendant gave his consent. Of the nine sapindas above mentioned, the first plaintiff is the nearest in degree. Next came plaintiff 2 and defendants 11 and 19, after them defendants 4, 12, 14 and 20 and next after them the 5th defendant. Mr. Venkatasubramania Ayyar, learned Counsel for the appellants, concentrated his arguments on the refusal of the first plaintiff, because if the refusal by him for reasons set out in his reply to the letter of the widow seeking consent was improper, it would follow that the refusal by the others would also be improper. If on the other hand the refusal by the first plaintiff was proper, the adoption would fail whether the refusal by the others was or was not proper.
3. As the decision in this case entirely turns upon the request of the widow for permission to adopt and the refusal by the first plaintiff to accord such permission, it is necessary to reproduce in extense the correspondence between them, i.e., between the first plaintiff and the first defendant. Exhibit A-1, dated 24th April, 1951, runs as follows:
You are aware of the several kinds of good deeds which I have been doing for the past 38 years after the death of my husband late Kulaindaivelu Mudaliar so that his soul might attain salvation.
Though I am aware of the doctrine taught by our sastras that a person who has no son will be subjected to the afflictions of the hell known 'as 'puth ', and that on account of the same adoption is necessary, yet, as I have to choose a boy who will be found agreeable to my mind and who will be capable of helping the soul of my husband to attain salvation, the adoption has been delayed up to this day.
Among the many boys whom I have seen up to this day with reference to the abovementioned doctrines the boy who is called Kulandaivelu and who is the son of Sankarasubramaniam alias Chellayya Mudaliar, residing at Mudaliarkottai, Solaikkurichi, is found satisfactory in respect of the above-mentioned objects, I have determined to take in adoption for my husband.
As I am now 67 years old and as it is not proper to delay the adoption hereafter and as boy should be taken in adoption for my husband according to our caste custom in the month of Vaikasi of this year itself, besides requesting you in your capacity as one of the nearest reversioners to intimate your permission, request you to be present at and conduct the adoption and to be the chief person at the function for the salvation of the soul of my husband.
Expecting your permission by next post.
The reply by the first plaintiff is dated 28th April, 1951 (Exhibit A-3) and runs as follows:
I am in receipt of the registered letter, dated 24th April, 1951 sent by you soliciting my consent to the adoption of Kulandaivelu, son of Sankarasubramaniam alias Chellam Mudaliar and the letter is a surprise to me.
Your husband died more than 38 years ago and you never thought of making any adoption to him during all these years though about four years ago, there was some indefinite talk about it and a!: the instance of myself, the next reversioner to the estate of your husband and other agnates, i.e. the sons of my cousin Shanmuga Mudaliar, you gave up the idea of making an adoption and dropped the matter stating that you would not think of adopting a boy to your husband and that if you thought of it again you would select a suitable boy with my consent from among the descendants of myself or the descendants of the sons of my first cousin Shanmuga Mudaliar.
Evidently you have now been set up and you are now going back upon your assurance at the instance of your mother's sister's grandson Sankarasubramanian alias Chellam Mudaliar who is looking after your husband's properties under you and who is exercising considerable influence over you. Already, you had placed properties in the name of the said agent of yours, his son, who is proposed to be adopted and his sister, the moneys for the acquisition of the properties having come out of the estate of your husband, the late Kulandaivelu Mudaliar. In his interest and in the interest of his family, you now intend to make an adoption and in your old age, you have no independent will of your own and the said agent from corrupt and selfish motives is taking advantage of your senility and has caused the issue of the registered letter.
The boy chosen by you is not eligible for adoption you intend to make being aged about 20 and in no way related as an agnate to your husband. The proposed adoption is opposed to the uniform and invariable custom prevailing in our community in and around Sholavandan under which agnates alone are adopted.
Further, among my grandsons, there are eligible boys under seven years of age. Similarly among my first cousin's great grandsons, there are equally eligible boys under the age of twelve. The parents of the boys in our family are quite willing to give any amongst them you may choose in adoption to your late husband. I have no objection to any of these boys being adopted to your husband.
I do strongly object to the adoption of Kulandaivelu your agent's son not only for the reason that he is aged and ineligible but also for the reason that he is not an agnate and the proposed adoption is prompted by corrupt and selfish design on the part of your agent. The proposed adoption has behind it the motive of defeating the legitimate reversionary interest of your husband's agnates and is absolutely wanting in good faith.
It is clear from your letter that you have already made up your mind about the adoption of your agent's son without consulting me or other agnates. And the letter is but a farce for making it appear that I had been formally consulted about the adoption.
In these circumstances, I cannot give my consent to the proposed adoption and should you do so inspite of my protest, the adoption made in bad faith without the consent of myself and other agnates, cannot confer any right in your agent's son to the estate of the late Kulandaivelu Mudaliar. I warn you therefore against adopting your agent's son Kulandaivelu.
To this reply of the first plaintiff the widow sent a rejoinder through her lawyers (Exhibit A-4) and in this she attempted to meet every one of the objections put forward by the first plaintiff. The, rejoinder concludes with the assertion that under the circumstances the first plaintiff's refusal to grant permission is contrary to law and justice and therefore not valid. After publication in the press and issue of invitations, the adoption was made on 25th May, 1951.
4. In the plaint the validity of the adoption was challenged on grounds set out in the first plaintiff's reply Exhibit A-3. The plaintiff' further alleged that the fourteenth defendant appeared to have given his consent ' for sordid consideration from corrupt motives ' and that the adoption was brought about by defendants 1 to 3 acting in collusion with corrupt and selfish motives and without the consent of the first plaintiff and other agnates. Subsequently the plaintiffs were allowed to amend the plaint by adding the allegation that the fourteenth defendant was an active member of the Dravida Munnetra Kazhagam which owed no allegiance to the Hindu Law and Shastric texts regarding adoption and his consent even assuming it to be true had not been obtained out of any religious or spiritual consideration and further the second defendant was a partisan of the fourteenth defendant and a member of the said Dravida Munnetra Kazhagam and actively took part in the Blackshirt demonstration and did not believe in Hindu Shastras, religion and scriptures. Defendant 1 and 2 filed a common written statement in which they denied that the adoption was invalid for any of the reasons mentioned in the plaint and they stated that after deep consideration the first defendant found the second defendant a fit and proper boy to be taken in adoption that he had lived with her in the same house and she personally knew that he was of good conduct and character and a boy who had received excellent education. These two defendants pleaded that the refusal of consent on the part of the plaintiffs and other sapindas was not made on valid, proper or acceptable grounds but they were moved by corrupt and selfish motives to prevent an adoption. They denied as false the allegation in the plaint that the consent of the fourteenth defendant was given from corrupt motives. They denied that there was any custom or practice in the community that only an agnate's son could be adopted. The plaintiffs filed a reply statement in which for the first time they made the charges that the second and fourteenth defendants were members of the Dravida Munnetra Kazhagam and consequently the consent of the fourteenth defendant was bad and the second defendant is not eligible for adoption. It was. because of these later allegations that the plaint was allowed to be amended. The second defendant filed an adoptional written statement denying that he was a member of the Dravida Munnetra Kazhagam and that even supposing the fourteenth defendant was a member of the kazhagam that fact would not affect the validity or sufficiency of his consent.
The following issues were framed;
1. Whether the refusal of consent by plaintiffs 1 and 2 and defendants 4, 5, 11, 12, 19 and 20 is proper as alleged by the plaintiffs or is improper and unreasonable as alleged by defendants 1 and 2?
2. Whether the consent of the fourteenth defendant is sufficient for the adoption?
3. Whether the consent of the fourteenth defendant was obtained by corruption?
4. Whether the adoption is void for the reasons mentioned in the plaint?
5. Whether the custom alleged in the plaint is true, valid and binding on defendants 1 and 2?
6. Whether the suit as framed for mere declaration is not maintainable, after the death of the first defendant?
7. Whether the suit is not maintainable for any of the reasons alleged by defendants 1 and 2?
8. Whether third defendant is a necessary or proper party?
9. To what relief, if any, are the plaintiffs entitled?
5. After the amendment of the plaint above referred to, three additional issues were framed, namely:
(1) Whether the second defendant belongs to the Dravida Munnetra Kazhagam and does not believe in Hindu Shastras and if so, whether he is ineligible for adoption?
(2) Whether the ground covered by additional issue (1) cannot be set up now as it was not set up in the notices sent by the agnates to first defendant?
(3) Whether the fourteenth defendant is a member of the Dravida Munnetra Kazhagam and does not believe in Hindu Shastras and even if so, is his consent not valid on the ground that it was not given or obtained for religious or spiritual consideration?
6. The learned Subordinate Judge found on issue 1 that the refusal of consent by the plaintiffs 1 and 2 and defendants 4, 5, 11, 12, 19 and 20 was not proper. On issue 2 he found that the consent of the fourteenth defendant was sufficient. He answered Issue 3 in the negative holding that the plaintiffs had failed to prove that the consent of the fourteenth defendant had been obtained by corruption. In view of the findings on issues, 1, 2, and 3, issue 4 was also found against the plaintiffs. Even at the time of the trial issue 5 was not pressed by the plaintiffs, and no evidence was adduced to prove the custom. On issue 6 he found that the suit as framed was maintainable though the first defendant had died pendente lite. Issues 7 and 8 are not material. On the additional issues he held as follows:
(1) that the plaintiff had not proved that the second defendant belonged to the Dravida Munnetra Kazhagam (2) that the ground covered by first additional issue could be raised though it was not set up in the replies sent by the plaintiffs and other agnates to the first defendant and (3) that the consent of the fourteenth defendant was valid because he did not cease to be a Hindu and he was quite competent to give his consent to the adoption.
On the above findings the learned Judge dismissed the suit.
7. Mr. Venkatasubramania Ayyar, learned Counsel for the plaintiffs-appellants did not address any arguments to us to displace the findings of the learned trial Judge on the additional issues though he made it clear that he was not abandoning any of his clients' contentions embodied in those issues. He however confined his arguments before us to issues, 1, 2 and 3. Issue 3 can easily be disposed of. We were taken through the entire evidence bearing on this issue which is based on the allegation of the plaintiffs that the fourteenth defendant had been bribed to give his consent and we have no hesitation in agreeing with the learned trial judge that the plaintiffs have not succeeded in proving that the consent of the fourteenth defendant was procured by corruption. Evidence was let in on behalf of the plaintiffs to prove that his consent was obtained by a promise to pay him Rs. 25,000 out of which Rs. 12,500 were actually paid. The father of the fourteenth defendant gave evidence as P.W. 2. He deposed that the third defendant told him in the presence of others, namely D.W. 6, D.W. 4 and D.W. 1 that Rs. 25,000 had been offered to the fourteenth defendant for his consent and half the amount had already been paid and that if the witness also gave his consent he would be paid even a higher sum. The witness refused to agree to take a bribe and give his consent. He then met his son, the fourteenth defendant and asked him if that was true and the fourteenth defendant admitted it was so and tried to pursuade the witness also to give his consent. He scolded his son for taking the bribe and went and told plaintiffs 1 and 2 all that had taken place. D.Ws. 1, 2, 4, 6 and 7 gave evidence denying the truth of the story told by P.W. 2. The learned Judge who has seen the witnesses depose was not prepared to believe the uncorroborated testimony of P.W. 2 in preference to the evidence of the defence witnesses and in particular he found that D.W. 4 was a very respectable person who had nothing to discredit his testimony and that the story narrated by P.W. 2 is in the highest degree artificial and improbable. We are also of the same opinion as the learned trial Judge.
8. Before dealing with the main contention of Mr. Venkatasubramania Ayyar for the appellants, namely, that the refusal to consent to the widow taking the second defendant in adoption was not improper, we may briefly dispose of another contention pressed upon us by him. It is this. It is incumbent on a widow who does not have an authority from her husband to adopt and who intends to make an adoption to make a bona fide attempt to obtain the consent of her husband's sapindas and such an attempt was absent in this case. The sapindas are in the position of advisers and protectors of the widow and the widow should have a consultation with them before she makes her decision. If the widow has decided already to go on with the adoption or a particular boy and thereafter nominally asks the sapindas for their consent, the widow would not have discharged her duty. So his argument ran. In support of this contention he cited the ruling of a Division Bench of this Court in Chiravaru Pattabiramaraju v. K. Tirupatiraju (1918) 8 L.W. 413. He also cited other decisions and observations therein but all those related to cases in which the widow omitted altogether to consult the nearest sapinda or one or more of the nearest sapindas. Those decision cannot obviously apply to this case because admittedly the widow addressed letters to every one of the nine adult sapindas seeking their consent. In Pattabiramaraju v. Tirupathiraju (1918) 8 L.W. 413, the facts were as follows. A widow first obtained the permission of a remoter reversioner of her husband and then wrote to the nearest reversioner threatening that unless he gave her the necessary authority within twenty-four hours, she would adopt a son on the strength of the authority of the more remote reversioner. The learned Judges held agreeing with the learned trial Judge, that the adoption was invalid because there was no bona fide effort on the part of the widow to take the opinion of the sapindas in the way the law required. They considered that the widow was determined to ignore the nearest sapinda and not care for his advise or even give him an opportunity to advise her. The learned Judges on the evidence were clearly of the opinion that there was an absence of any bona fide attempt to obtain the advice of the deceased husband's sapindas before the adoption was made and the adoption was in consequence not valid. The facts in the present case arc entirely different. There is no evidence that the widow had obtained the consent of the remoter sapinda, the fourteenth defendant, before she addressed letters to the several sapindas including the first plaintiff asking for their consent. There is certainly no allusion in any of these letters to the consent of the fourteenth defendant having been obtained. Nor do they contain any threat to proceed with the adoption on the strength of his consent. It is true that the letters indicate that she had selected the boy. This in our opinion was only natural and there was nothing wrong about it. Indeed it was the duty of the widow to inform the sapindas of her choice to obtain their opinion. Presumably the letters to the sapindas were addressed after consultation with her lawyers who must have advised her that the safe course was to make formal applications to every adult sapinda for consent. The widow not only addressed these letters but when she received replies refusing to give their consent, she sent rejoinders through her lawyers meeting the objection raised by them. In these circumstances we have no hesitation in holding that there has been a bona fide effort on the part of the widow to obtain the consent of the sapindas. In Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388, a similar contention was raised but repelled by their Lordships of the Judicial Committee. The facts in the present case are much more in favour of the widow than the facts in that case.
9. We are left then with the question whether the refusal by the sapindas including the first plaintiff, except of course the fourteenth defendant, was improper and therefore could be disregarded. Though the reply of the first plaintiff, Exhibit A-3 contained many reasons for his refusal, Mr. Venkatasubramania Ayyar, learned Counsel for the appellants, confined himself to one reason, namely, that there were eligible boys available in the agnatic family. This reason, or reason similar to this, has been the subject of decision and comment in cases of this Court. But before we refer to them, it may be useful to examine the authorities bearing on this aspect of the law of adoption applicable to this part of the country. By reason of the presumed incapacity of women for independence, the assent of the kinsmen is required to ensure that the adoption is made by the widow in the proper and bona fide performance of the religious duty and neither capriciously nor from a corrupt motive: Collector of Madura v. Mootoo Ramalinga (1868) 12 M.I.A. 397. The sapindas are the natural guardians and protectors of the widow's interests. They have also an interest in the protection of the inheritance. They are therefore in a fiduciary position and they are also in a sense in the position of Judges. What they have to do is to decide ' upon a fair consideration ' ' the expediency of substituting an heir by adoption to the deceased husband '-Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi , Veerabasavaraju v. Balasuryaprasada Rao and Kristnayya v. Lakshmipathi . To use the words of Viscount Cave, the sapindas should form ' an intelligent and honest judgment on the matter'.
10. As a direct corollary to the proposition that the sapinda of whom consent is sought should act in a fiduciary capacity and exercise an intelligent and honest judgment follows another proposition, that if a sapinda refuses his consent without exercising an honest judgment in breach of his fiduciary duty, his refusal may be disregarded. The earliest decision laying down this latter proposition is that in Parasara v. Rangaraja I.L.R. (1880) Mad. 202. On pages 206-207, the proposition is thus stated:
Where the only surviving members of the family are divided from the deceased husband for whose benefit it is desired to make the adoption, and also from each other and equally distant from the deceased, there seems nothing in principle to throw doubt upon the sufficiency of the assent of some of them when bona fide given, if it be shown that the consent of the others is refused from interested or improper motives or without a fair exercise of discretion.
In Venkatakrishnamma and Anr. v. Annapurnamma (1899) 10 M.L.J. 73 : I.L.R. 23 Mad. 486, a widow made an adoption with the consent of three out of four of her husband's sapindas. The fourth sapinda who had refused his consent without giving reasons for such a refusal impugned the adoption. It was held that the adoption was valid as the majority of the sapindas had given their consent and the refusal of one of the sapindas may be left out of consideration. No doubt in this case the sapinda even at the trial would not disclose why he did not give his assent. Subramania Ayyar, J., who delivered the judgment of the Bench referred to Parasara v. Rangaraja I.L.R. (1880) Mad. 202, as having decided that when the reasons for a sapinda's refusal to consent arc expressed at the time the consent is sought and are improper, the sapinda cannot rely on such refusal as affecting the validity of the adoption made with the assent of others properly given. He then proceeded to discuss the particular facts before the Court, i.e., that the sapinda did not give his reasons for refusing the assent. The learned judge observed:
And it would seem only reasonable to any that when a sapinda refuses to assent but withholds his grounds for such refusal, he must be held to be precluded from relying on the refusal as in any way affecting the adoption. The propriety of this view will be clearer still if we remember the reason of the rule which compels a widow, desirous of making an adoption but possessing no authority from her husband in regard to it, to obtain the assent of his sapindas. The reason is the presumed incapacity of women for independent action in such a matter and as the position of the sapindas in cases like this is, according to the Judicial Committee, similar to that of a family council that has to decide upon the expediency of substituting an heir by adoption to the deceased husband on a fair consideration of the question Venkata Krishna Rao v. Venkatarama Lakshmi , a sapinda who, like the appellant, refuses to give his reasons for the opinion why such an heir should not be substituted while other sapindas decide otherwise, cannot be held to exercise properly the discretion confided to him. His opinion against the adoption must be put entirely out of consideration as capricious or prompted by undue considerations.
11. In Kristnayya v. Lakshmipathi , there were five sapindas nearest in degree. The widow obtained the assent of only one of them and it was found that the widow had never applied to the other four for their assent. It was held by the Judicial Committee, agreeing with this Court, that the adoption was invalid. The widow had obtained the consent also of remoter sapindas, but this did not suffice in the absence of consent on the part of the nearest sapindas. Though the direct decision did not relate to a refusal of assent by a sapinda, their Lordships made certain general observations which are of importance. They said:
This does not mean that the consent of a near sapinda who is incapable of forming a judgment on the matter, such as a minor or a lunatic, is either sufficient or necessary; nor does it exclude the view that, where a near relative is clearly proved to be actuated by corrupt or malicious motives, his dissent may be disregarded. Nor does it contemplate cases where the nearest sapinda happens to be in a distant country, and it is impossible without great difficulty to obtain his consent, or where he is a convict or suffering a term of imprisonment. 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 on the matter.
Mr. Venkatasubramania Ayyar relied strongly on these observations as laying down a general rule that it is only where a near sapinda is clearly proved to be actuated by ' corrupt or malicious motives ' that, his dissent may be disregarded. In our opinion their Lordships were not dealing with this particular question directly and it will be wrong to presume that they meant that statement to be exhaustive. Nor do they indicate what exactly are comprised in the category of corrupt and malicious motives. They speak only of the motives and not of the reasons assigned by the refusing sapinda. It is not impossible to conceive of a case in which a sapinda actuated by a corrupt motive may assign a very proper reason for refusing to assent.
12. In Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388, their Lordships had to pronounce on the propriety of a refusal to consent on the part of a sapinda. The decision in this case is important in more than one way.
13. There were two sapindas in the same degree. One of them gave his consent to the adoption of his son and the other refused. The reasons for the refusal were embodied in a letter in which he alleged that the proposal to adopt was on account of the spite against him, that the widow and her brothers and the other sapinda had joined hands to put him to loss and that the widow and her brothers had made some arrangements for themselves as consideration for agreeing to the adoption, that the assenting sapinda had received consideration for his assent and that the boy to be adopted was the son of his long standing enemy. Their Lordships held that the consent was wrongfully withheld and could be disregarded. They observed as follows:
In giving or withholding their consent it is their duty, in this capacity, to form an honest and intelligent judgment on the advisability or otherwise of the proposed adoption in, and with reference to the widow's branch of the family. In their Lordships' opinion the reply of the respondent shows that he did not carry out this duty.... The whole letter is instinct with the idea of personal loss to himself, and his personal enmity to Ramakrishna, who is in effect charged with corruption. There is nothing in the paragraph referred to which suggests that the respondent considered that the terms attached to the adoption would be detrimental to the estate; it in effect only alleges that the first defendant was conspiring with her brothers and with Ramakrishna to bring in the son of his life-long enemy and to deprive him of his right of succession to the estate. Their Lordships have no hesitation in holding that where a sapinda whose consent to an adoption is sought is actuated by motives such as these, his dissent may be disregarded, and they think it follows that if the only other sapinda in the same degree accords a bona fide consent, the adoption will be valid; see in this connection Parasara v. Rangaraja I.L.R. (1880) Mad. 202 and the remarks of Viscount Cave in the Adusumilli case cited above '. (The remarks which have been extracted earlier on in this judgment.)
It is noteworthy that their Lordships refer with apparent approval to the decision of this Court in Parasara v. Rangaraja I.L.R. (1880) Mad. 202.
14. We shall now deal with cases in which the validity of the reason now relied on by Mr. Venkatasubramania Ayyar, namely, that there were eligible boys available in the agnatic family, or a similar reason was examined or commented on. The earliest is the case of Subramanyam v. Venkamma : (1903)13MLJ239 . There were two sapindas of equal degree. One of them gave his assent but the other was not asked. It was held that the adoption was invalid because it was the duty of the widow to seek the assent of both the sapindas and she could not neglect to seek the assent of one of them because in her opinion it would have been in vain. No question of the propriety of a refusal arose for decision. The learned Judges refer with approval to the statement of the law in Parasara v. Ragaraja I.L.R. (1880) Mad. 202, which is thus summarised:
If the presumptive reversionary heir or heirs withhold his or their assent from improper motives, the widow may validly act upon the assent given bona fide by remoter reversionary heirs.
The widow in this case had alleged that she did approach the Plaintiff-sapinda but he wanted her to take one of his sons in adoption. This allegation was not accepted as proved. The finding was that the plaintiff had never been asked. Nevertheless the learned Judges made the following observation:
But assuming, as the first defendant says, that some five years before the adoption the plaintiff wanted her to take one of his sons in adoption, there is nothing improper in a sapinda proposing to give his assent to the widow adopting his own son, if such son be the nearest sapinda and refusing to give his assent to her adopting a stranger or a distant sapinda, if, there be no reasonable objection to the adoption of 1 is own son as for instance in the case of Parasara Bhattar v. Ranga Raja Bhattar I.L.R. (1880) Mad. 202.
There can be no doubt whatever that this observation was entirely obite;. The learned Judges were not called upon to decide the question whether the refusal of the plaintiff was one which could be disregarded. It is clear that the learned Judges were not giving their best attention to the matter in making the above observation because with the greatest deference to the learned Judges (of whom one was Bashyam Ayyangar, J.), we are unable to follow how the son of a refusing sapinda could be ' the nearest sapinda ' when presumably the father was the nearest sapinda. If the learned Judges, however, meant to lay down a general rule of universal application, that a refusal by a sapinda to give his consent except on the condition that the widow would adopt his own son is not improper, we respectfully express our dissent. Such an imposition of the personal interest of the sapinda on the widow would not, in our view be a bona fide exercise of the discretion vested in him in a fiduciary capacity. In Venkatapathi v. Punnamma (1915) M.W.N. 236, the above obiter dictum is referred to but the learned Judges (Wallis, C.J. and Hannay, J.) without expressing their agreement with it said:
We think that even assuming that refusal under the circumstances mentioned by Bashyam Ayyangar, J., is justifiable it cannot be said in the circumstances of the present case the refusal was justified. The ground for the reasonableness of the refusal in that case appears to be the fact that according to Hindu notions an adoption of a near sapinda is preferable to the adoption of one more remote.
15. The next case is Alluri Venkatasimha Raju and Anr. v. A. Bangar Raju A.S. Nos. 96 and 256 of 1944, decided by Patanjali Sastri and Bell, JJ. The judgment has not been reported, but we have had the advantage of perusing it. That case related to the adoption by a widow to her husband who was undivided from his two brothers. Both the brothers who were the nearest sapindas within the joint family refused to consent to the adoption. Thereafter she obtained the consent of a remoter sapinda, namely, the son of one of the brothers, and another more remote. One of the reasons assigned for the refusal was that the boy proposed to be adopted was a stranger to the family and boys more eligible for adoption by her were available in the family. The learned Judges posed the question thus:
The question is whether, where his surviving coparceners object to the adoption of a stranger by the widow of a deceased coparcener on the ground that more eligible boys are available in the family, the objection can be held to be improper.
They held that the refusal was justified and proper and in so holding relied on the observation in Subramanyam v. Venkamma : (1903)13MLJ239 , extracted above. We do not wish to say anything about the actual decision in the case. They were dealing with a case where the deceased husband was a member of a joint family. The adoption would introduce a new member to the family with whom the surviving coparceners will have to live. It may be that one of the coparceners may object to the introduction of a stranger boy into the family. If however, the learned Judges meant to lay down a general rule applicable to all cases, we respectfully beg to differ.
16. To the decision in Venkatarayudu v. Seshamma (1948) 1 M.L.J. 552, one of us was a party. The validity of the adoption in the case was attacked on two main grounds, one of which was that the nearest presumptive reversioners had refused their consent. The question was whether their refusal was improper. The one substantial reason for the refusal was that the boy proposed to be adopted was not a sanihita sapinda, sagotra or gnati. The refusal was sought to be justified as proper relying upon the observations in Subramanyam v. Venkamma : (1903)13MLJ239 , to which reference has already been made. After mentioning that these observations were obiter, we went on to say.
It may be that in a case where the sapinda refused his consent to the adoption of a boy on the ground that the boy was disqualified, say, on the ground of leprosy or idiocy, the refusal would be proper. In this case, we have no hesitation in holding that the refusal by the plaintiffs on the ground that the proposed boy was not a sapinda or sagotra or a gnati was not proper.
We quoted with approval the following remarks in Mayne's Hindu law:
From the authorities it is difficult to say on what grounds a sapinda can validly refuse his assent... The practical result of the authorities therefore appears to be that a sapinda's refusal to an adoption can seldom be justified.
17. In Sundara Rama Rao v. Satyanarayanamurthi : (1949)2MLJ199 there is an exhaustive discussion of the subject by Satyanarayana Rao and Viswanatha Sastri, JJ. In that case one of the questions was whether the refusal by the plaintiff who was the undivided coparcener along with the deceased husband was proper or improper. The reasons on which the refusal was based and on which it was sought to be justified were (1) that the boy adopted belonged to a family in which there was leprosy and that he in fact was also suffering from leprosy, (2) that he came from the enemy's camp and (3) that the plaintiff was prepared to give his own son in adoption. The first ground was not substantiated and the second ground was found both on the facts and on the law untenable. The propriety of the other ground was discussed by both the learned Judges and it was found to be not proper. The plaintiff had only one son at the time of the adoption. The widow pointed out that it would be improper to adopt an only son. The observations of Bashyam Ayyangar, J., were again relied on before the learned Judges but both of them considered that the observations were obiter. The unreported judgment of Patanjali Sastri and Bell, JJ., in Alluri Venkatasimha Raju v. Alluri Ranga Raju A.S. No. 96 of 1944, was also relied on. But that decision was explained as being based on the particular circumstances in that case. Satyanarayana Rao, J., observed:
No general rule can be laid down that in all cases and under all circumstances the refusal of a sapinda to give his assent to the adoption on the ground that the widow refused to adopt the boy of his own in adoption is a proper refusal. The question has to be considered on the facts of each case.
With great respect to the learned Judge, we are in entire agreement with this statement of the law. As the learned Judge pointed out, the sapinda whose consent is asked for has to consider the expediency of the proposed adoption and pronounce an independent and unbiassed judgment on that question. Viswanatha Sastri, j., also fully dealt with this question. Meeting an argument, which was also addressed to us by Mr. Venkatasubramania Ayyar, that the adoption of a near gnati is recommended by the commentators the learned Judge said that they were merely moral precepts which do not affect the validity of an adoption. The learned Judge expressed his definite dissent from the observations in Subramaniam v. Venkamma : (1903)13MLJ239 . The following description of the sapinda's power and duty in the matter of assenting or refusing assent to an adoption by a Hindu widow is instructive and in our opinion, lays down sound law:
The sapindas' power of assenting or refusing assent to an adoption by a Hindu widow, is, in my opinion, a fiduciary power which must be exercised for the end designed, namely, the substitution of an heir by adoption to the deceased person and not for the purpose of advancing or prejudicing the personal interest of this or that sapinda. The sapindas are to be regarded as a 'family council' the natural guardians of the widow, and the protectors of her interests. In giving or withholding their consent it is their duty, in this capacity to form an honest and independent judgment on the advisability or otherwise of the proposed adoption, in and with reference to the widow's branch of the family.
18. The question whether the refusal of a particular sapinda can be disregarded as improper or not is a question of fact and, as other questions of fact, must be decided on a consideration of the facts and circumstances bearing on the question. We do not think that there can be an exhaustive enumeration of justifiable grounds and another list of improper grounds. The same grounds in certain circumstances may be justifiable and in other circumstances not. The question must be examined with reference to the general attitude of the sapinda as expressed in the grounds given by him for refusing assent and not on an examination of any one ground as being in itself justifiable or otherwise. Has the sapinda discharged his fiduciary obligation Has he given an unbiassed and honest judgment These are the questions to be asked and answered. Now, in the present case, a perusal of the reply by the first plaintiff leaves no room for doubt that his refusal was not in the exercise of an unbiassed and honest discretion. It is obvious that he did not like the widow to make an adoption. Indeed he starts his letter with the statement that years ago she had given up the idea of making an adoption. He sets up a custom which was abandoned at the trial and therefore must be presumed to be falsely alleged. One of his reasons is that the proposed adoption has behind it the motive of defeating the legitimate reversionary interests of the agnates. His attack is on the adopted son's father who is described as an agent. The letter, taken as a whole, clearly demonstrates the fact that he was actuated by improper motives in refusing to give his assent. We agree with the learned trial Judge on this question.
19. Mr. Venkatasubramania Ayyar also contended that, even assuming that the refusal by the nearest sapindas was improper, the widow would have no power to make an adoption on the consent of some remote reversioner. In our opinion this contention is opposed to the trend of authority. Sundara Rama Rao v. Satyanarayanarnurti : (1949)2MLJ199 , is authority for the position that in principle there is no distinction between a case where a sapinda is incapable of giving the assent and a case where he improperly refuses and withholds his consent. In either case there is justification for the widow to seek the consent of remoter sapindas.
20. In the result the appeal fails and is dismissed with costs of the first respondent. K.S. Appeal dismissed.