P.V. Rajamannar, C.J.
1. The only question m this appear is whether the alleged adoption of the plaintiff-appellant to one Peddappa Reddiar by his senior widow, the first defendant, is valid. The suit was filed by him for a declaration that he was such validly adopted son and for partition of the suit properties. The two defendants were the two widows of Peddappa Reddiar who died on 2nd September, 1946. He had no male issue but by the first defendant he had four daughters and there is evidence that the daughters have also sons who were alive at the time of the death of Peddappa Reddiar. The plaintiff is the second son of Appuswami Reddiar, the only brother of Peddappa Reddiar, but divided from him. In the plaint it was alleged that Peddappa Reddiar authorised the first defendant, his senior widow, to make an adoption. It was further alleged that the widow also obtained the consent of the nearest agnates of her husband, namely, Appuswami Reddiar, his divided brother, and two sons of one Chinna Rami Reddi, the son of the brother of the paternal grandfather of her husband, namely, Gengi Reddi and Erra Nagi Reddi. The consent given by these three agnates was embodied in a registered document, dated 15th June, 1949. The adoption is alleged to have taken place on 17th June, 1949. An adoption deed bearing that date was executed and registered. The first defendant was exparte. The second defendant who was the sole contesting defendant, the junior widow, denied that Peddappa Reddiar ever gave authority to the first defendant to make an adoption. She definitely stated that her husband was not desirous of adopting either the plaintiff or any other person at any time as he had a number of grandsons by his daughters. She challenged the validity of the consent given by the three agnates including the plaintiff's father. There was also a plea that the consent given by Gengi Reddi and Erra Nagi Reddi was given with a corrupt motive. She went to the extent of denying altogether the factum of adoption.
2. The learned Subordinate Judge of Salem who tried the suit, on a consideration of the evidence adduced before him found the factum of adoption was established beyond doubt. That finding has not been challenged before us by the second defendant-respondent. The learned Judge, however, found that the first defendant had not been authorised by her husband to adopt. He went further and held that her husband had specifically prohibited her, the first defendant, from making an adoption. The learned Judge also held that in any event the consent of the sapin-das in this case was not sufficient to uphold the validity of the adoption because such consent was obtained by a misrepresentation made to them that the husband had given her the requisite authority to adopt. On those findings the suit was dismissed with the costs of the second defendant. Hence this appeal by the plaintiff.
3. Mr. T.M. Krishnaswami Ayyar took us through the entire evidence and challenged the findings of the learned Subordinate Judge regarding the validity of the adoption. The first question which falls for decision is whether the first defendant was actually authorised by her husband to make an adoption. It is only an oral authority that is set up. The only direct evidence of the husband having given that authority is that of the first defendant herself. She deposed that even before he fell ill prior to his death, he had expressed his desire to adopt a son and, when he was ill, he expressed his intention to adopt a son and subsequently he said that in case he died without making an adoption, she should adopt a son. According to her, one Masaperumal Reddi, P.W. 7, and her son-in-law, Thammanna Reddi, were present when her husband expressed his desire to adopt a son. Masaperumal Reddi has been examined as P.W. 7 ; but we find it impossible to rely on his evidence. Thammanna Reddi was not examined. The first defendant was, however, compelled to admit that during his illness her husband said that his daughters and their sons should take all his properties. She also admitted that he had no ill-will towards his daughters or their sons. The natural father of the plaintiff gave evidence as P.W. 6. According to the first defendant he was not present when her husband expressed his desire to adopt a son ; nor does he say any authority was given to the first defendant in his presence. P.W.'s. 4 and 5, the other two witnesses who subscribed to the document embodying the consent, obviously do not know anything about the giving of authority by the husband and their only informant appears to be the first defendant herself. As against this evidence, there is the evidence of the second defendant that when the first defendant came to Salem, where her husband was residing for some time and suggested to him either to adopt a son or to execute a will, he said that it was not his intention to adopt a son and that he intended, after his death, his widows should enjoy his properties and, after their death, the daughters and their sons should take his properties. It is difficult arbitrarily to choose between the evidence of the two widows, each interested in supporting her case. The probabilities, however, support the respondent's case that the husband never gave the first defendant authority to adopt. Peddappa Reddiar not only had daughters but also sons of daughters and apparently he was quite fond of his children a well as grandsons. It was not suggested that he was on terms of hostility with them. Presumably the first defendant should also be interested in them. Even assuming that his relations with his divided brother, Appuswami Reddiar, the plaintiff's father, were cordial, his affection for his divided brother's son could not be greater than his affection for his own grandsons. If he had wanted to make an adoption he could have easily made the adoption during his own lifetime. Plaintiff's father was evidently quite willing to give his son. Though Peddappa Reddiar died in September, 1946, there was no reliable evidence of any attempt on the part of the first defendant to set about making the adoption. The only explanation she gives is that she was asking the second defendant to consent to the adoption but she was not willing to agree.There is clear evidence that the relations between the co-widows ceased to be friendly at least from 1948 onwards. There was even a complaint to the police and intervention by the police officers. The second defendant confessed that there was no reconciliation between her and her co-widow. It is only after the widows fell out that we find the first defendant taking steps to make an adoption. She was evidently not certain of establishing their case of an oral authority from her husband and wanted to fortify herself by obtaining the consent of the nearest reversioners. Having regard to all these circumstances, we agree with the learned trial Judge that the plaintiff has not proved his case that the first defendant has been authorised by her husband, Peddappa Reddiar, to make the adoption. We are, not, however, inclined to agree with the learned Judge that there was any express or implied prohibition.
4. It is clear to us on the evidence that the consent of the three agnates was obtained by the first defendant under Exhibit A-4 on the representation made by her that her husband had given her oral permission to adopt. The deed of consent recites in unambiguous language that prior to his death Peddappa Reddiar had given oral permission to adopt K.A. Gopalaswami, that is, the present plaintiff, and that the widow proposed to take the said boy in adoption 'in accordance with the willingness and permission of your husband'. The plaintiff's father and P.Ws. 4 and 5, the two more distant agnates, have all signed the document containing the above recitals. Appusamy Reddiar, the plaintiff's father, does not say that he was present when Peddappa Reddiar gave his authority to the first defendant to make an adoption. His source of information must therefore be the first defendant herself. As we have now held that the husband did not give his consent, it follows that the consent given by the sapindas on the assumption that the husband had given his permission is not consent given on an exercise of their own discretion and, therefore, would not be sufficient to give validity to the adoption. The learned Judge apparently was of the view that the assent of Appuswami Reddiar, the plaintiff's father, did not count in any event because it was his own son who was being given in adoption and therefore he was not free to exercise his discretion impartially. This view is not correct, vide Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388 . Though this view of the learned Judge is wrong, his finding must stand, namely, that the assent given by P.W's 4 to 6 is not sufficient in law to validate the adoption. He came to this finding mainly on the specific reference to alleged authority in Exhibit A-4, the deed of consent.
5. In the result the plaintiff's suit must be dismissed as he cannot be declared to have been validly adopted to Peddappa Reddiar by the first defendant. We do not, however, think that the second defendant-respondent should get her costs in this appeal. In the Court below she set up a case which we think was false to her knowledge, namely, that no adoption ever took place. This plea of hers made it necessary for evidence to be adduced which would have been avoided if she had admitted the factum of adoption and only challenged its validity. We may also observe that in the written statement she did not put forward her case as clearly and definitely as she should have done. Having regard to her conduct, we do not think she was entitled to her full costs in the Court below; but we do not wish at this stage to interfere with the order for costs passed by the learned trial Judge. We think it is sufficient to deprive her of the costs of this appeal. The appeal, is therefore, dismissed, but without costs.