1. This appeal arises out of a suit filed by the plaintiff as the adopted son of one Ayyanna Kone for the recovery of possession of the plaint-mentioned properties. Ayyanna Kone died on January 7, 1920, without leaving any male issue. The lands owned by him at the time of his death were about 34 acres in extent. Solai Achi, who was his first wife, predeceased him leaving a daughter Chokkammal who is the 1st defendant in this suit. The second wife Seruvakkal had a daughter who died a few months after the death of Ayyanna Kone. While Seruvakkal was alive, Ayyanna Kone married a third wife Vellammal who is the 2nd defendant in this suit and who has no issue. After the death of Ayyanna Kone, his co-widows, viz., Seruvakkal and the 2nd defendant, fell out with the result that a suit for partition was filed by the 2nd defendant against Seruvakkal (O.S. No. 415 of 1920 in the District Munsifs Court, Melur). During the pendency of that suit a release deed was executed by the 2nd defendant in favour of Seruvakkal on November 1, 1922, relinquishing her half share in her husband's estate in favour of her co-widow in consideration of the receipt of Ks. 10,000 (Ex. I). The aforesaid suit was allowed to be dismissed for default. The present plaintiff who is a minor is the son of Ezhumalai Kone, one of the two brothers of Ayyanna Kone the other brother being one Veerabhadra Kone. According to the case set out in the plaint, the plaintiff, while he was a young boy, was brought up in the house of Ayyana Kone with a view to adopt him in case he had no male issue. In conformity with the intention of Ayyanna Kone shown by his conduct during his life-time and for the perpetuation of the lineage of Ayyanna Kone, the plaintiff was adopted to him by the 2nd defendant who was his only surviving widow, with, the consent of the nearest agnate, Ezhumalai Kone, who is also the natural father of the plaintiff and other relations. The other brother Veerabhadra Kone died in 1933 long before the adoption. It is alleged that the adoption was made on December 9, 1928, with all the formalities required by law and is also evidenced by the registered deed of adoption (Ex. C) executed by the 2nd defendant and Ezhumalai Kone. On the basis of his right as the adopted son of Ayyanna Kone, the plaintiff seeks to recover possession of the suit properties. The 1st defendant is the main contesting defendant. The 3rd defendant as an alienee of some of the items in question is opposing the plaintiff's claim almost on the same grounds as those set up by the 1st defendant. One of the contentions is that by reason of the relinquishment as per the release deed executed by the 2nd defendant she has surrendered her entire interest in the estate in favour of the senior widow and the lineal descendants of Ayyanna Kone and therefore her power to adopt was at an end. Another contention is that even if the alleged adoption is true, it is not valid in law as the alleged consent of the plaintiff's father was influenced by no bona fide, desire to administer to the spiritual needs of the deceased Ayyanna Kone or to perpetuate his line, but by the dishonest and correct idea of sharing amongst themselves the properties of Ayyanna Kone that had descended to the 1st defendant and her own sons. As many as eleven issues have been framed in this suit. The learned Subordinate Judge chose to give his findings on the questions relating to the truth and validity of the adoption and dismissed the suit as a result of his findings on those points, without deciding the points involved in the other issues. He held the adoption to be true but found it to be not valid. We are constrained to express dissatisfaction at the manner in which the learned Subordinate Judge has written his judgment, and suffice it to say, that a major portion of it is a mere reproduction of the evidence given by each witness, in an ill-assorted, unanalytical and confused manner, from which little help could be derived for understanding the nature of his reasoning and his mode of appreciation of the evidence.
2. There is ample proof in support of the fact of adoption. The circumstances in which this adoption came to be made are set out in the registered deed (Ex. C) executed by the 2nd defendant as the adoptive mother, and the plaintiff's natural father Ezhumalai Kone (P.W. No. 6), the giver of the boy in adoption. Plaintiff's Witnesses Nos. 1 and 2 are some of the numerous attestors in this deed, while P.W. No. 3 is the writer thereof. It is proved to have been attested by Ramaswami Kone a brother of the 2nd defendant. It is also attested by Venkatachalapathi Kone, a relation of the 2nd defendant and the next friend of the plaintiff (P.W. No. 5). Plaintiff's Witness No. 4 who is the photographer that took a group photo at the time of the adoption (Ex. B) is also an attestor to the adoption deed. It is further proved that Thannan Kone, one of the two sons of Veerabhadra Kone, is the first attestor in Ex. C. There is evidence to show that both the sons of Veerabhadra Kone were present at the ceremony of adoption, but the other son declined to attest the adoption deed at the instigation of his mother. Two distant gnatis have also attested this deed. Not only is the truth of the adoption proved beyond doubt, but the celebration of the ceremony with due publicity is also clearly made out. No serious attempt has been made on the respondents' side to impeach the correctness of the finding as regards the factum of adoption.
3. The real point of controversy upon which elaborate arguments have been addressed is the question of its validity. The lower Court is of opinion that the 2nd defendant by executing the release deed (Ex. I) brought about her self-effacement, and therefore was not competent to take the plaintiff in adoption. Its misconception of effect of the release deed is apparent. As already observed this deed was executed by the 2nd defendant during the pendency of her suit for partition against her co-widow Seruvakkal. On a perusal of the terms of this deed, it is clear that she alienated her half share in her husband's estate to her co-widow in consideration of having received a sum of Rs. 10,000 for the purpose of discharging her debts and for the purpose of purchasing some lands for her maintenance and providing herself with a house to live in. It is recited that the 2nd defendant would not question any of the dispositions of property which Seruvakkal might choose to make, and that if she should predecease the 2nd defendant without making any arrangements with respect to her property, it should so to her senior co-widow's daughter Chokkammal (1st defendant) and her sons, who were then minors, according to Hindu Law and usage. The effect of these stipulations is nothing more than the giving up by the 2nd defendant of her right to claim the properties of the co-widow, in case the latter should predecease the former. This is virtually a case of partition between the two co-widows, one of them taking a money compensation for her half share and giving up her right to take the co-widow's property by survivorship. This is certainly not a case of what in law is deemed to be a surrender by a widow of the entire estate of her husband in favour of the next presumptive reversioner, thereby accelerating the reversion and bringing about her civil death. As per the terms of Ex. I, the relinquishment by the 2nd defendant of her half share was not given in favour of any reversioner but in favour of her co-widow. That co-widow also did not surrender her estate during her life-time in favour of the 1st defendant, the next reversioner. It was only after the death of Seruvakkal without making any disposition of the property that the 1st defendant got into possession. In the case of a valid surrender by the widow to next reversioner according to Hindu Law, one who was subsequently adopted by the widow is not entitled to question the surrender and recover possession of the property. Vide the decision of the Bombay High Court in Rama Nana v. Dhondi Murari : AIR1923Bom432 . Even that case proceeded on the footing that the adoption was valid, and no contention was raised that by reason of the surrender the widow's power to adopt came to an end. It may be that by reason of the 2nd defendant having given up her right of survivorship as per the terms of the release deed (Ex-1), the estate of Seruvakkal devolved on her death upon the 1st defendant as her heir though her co-widow (2nd defendant) is still alive. It may be argued that the subsequent adoption of the plaintiff by the 2nd defendant is not valid because it will have the effect of divesting the estate which had already vested in a third party, viz., the 1st defendant. A similar question has been recently considered by their Lordships of the Privy Council in a decision reported as Amarendra Man Singh v. Sanatan Singh . After a review of the authorities the opinion expressed by their Lordships is as follows:
It necessarily follows, their Lordships think, from this decision that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another coparcener of the joint family or an outsider claiming by reverter, or their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. If in Partap Singh Shiv Singh v. Agarsingh : AIR1919Bom80 the actual reverter of the property to the head of the family did not bring the power to an end it would be impossible to hold in the present case that the passing by inheritance to a distant relation could have that effect any more than the passing by survivorship would be in a joint family.
4. In the present case it cannot even be said that the estate of Ayyanna Kone has devolved on the 1st defendant in her right as the nearest heir to him, for the simple reason that one of his widows, viz., the 2nd defendant is still alive. All that can be said is that the estate of Seruvakkal has been inherited by the 1st defendant as the heir to her stridhanam property. In any view, the power of the 2nd defendant as the widow of Ayyanna Kone to adopt a son to him has not come to an end. It cannot he contended with any decree of force, that a widow is incompetent to make an adoption to her husband after alienating the entire properties appertaining to her husband's estate. There is, in the present case, no self-effacement as stated by the lower Court, and we are unable to uphold its finding that the 2nd defendant was not competent to take the plaintiff in adoption by reason of the so-called self-effacement.
5. The more important ground of objection which was strenuously pressed by Mr. K.V. Krishnaswami Ayyar for the 1st defendant has now to be considered. A brief statement of the facts disclosed in the evidence is necessary. The evidence of P. Ws. Nos. 1, 2 and 6 clearly shows that the late Ayyanna Kone was anxious to have a male child, and with that object, he married his second and third wives. However, he had no male issue. The present plaintiff who is the son of his brother Ezhumalai Kone was brought up in his house with some affection. When the plaintiff was a young boy of four or five ears of age, the first wife of Ayyanna Kone, viz., Solai Achi, met with death. Her obsequies were performed by the plaintiff as desired by Ayyanna Kone. The plaintiff being very young, his father Ezhumalai Kone performed the rites after taking darbha from him as his proxy (vide the evidence of P.W. No. 1). This fact is specifically alleged in the plaint. Although D.W. No. 1 (the husband of the 1st defendant) would say in the evidence that his son performed those obsequies, that fact was not mentioned in the 1st defendant's written statement. The truth of the facts mentioned in the adoption deed (Ex. C) as to the intentions of Ayyanna Kone to adopt the plaintiff and to his having brought up the boy in his house with some such object is borne out by the evidence of the plaintiff's side. As no express authority to adopt was given by him to his widows, the 2nd defendant as the sole surviving widow had to seek the consent of the nearest agnatic sapinda in order to make the adoption. Plaintiff's Witness No. 5 is plaintiff's next friend and also a relation of the 2nd defendant. He speaks to the 2nd defendant having consulted him about the advisability of taking the plaintiff in adoption about two or three months before the actual adoption. Thereupon he and the 2nd defendant's brother Narayana Konar asked Azhumalai Konar regarding the adoption. The latter said that he had no objection, Ezhumalai Kone (P.W. No. 6) swears that he and the 2nd defendant consulted their relations regarding the advisability of the adoption and that he asked his brother's sons and another pangali and some others who all expressed themselves in favour of the adoption. He further says that the 2nd defendant wanted her family to be perpetuated, and with that object he gave the boy in adoption. Though the plaintiff was his only son, he thought he might beget a son subsequently as his wife was young. He speaks to the fact that his brother Veerabhadra's sons were also in favour of the adoption. One of them has in fact attested the adoption deed (Ex. C), having been also present at the ceremony of adoption. There is nothing to rebut the evidence adduced by the plaintiff in these points. Defendant's Witness No. 1 simply says that neither he nor his wife was consulted about the adoption and that they were not even invited for the ceremony though the evidence on the plaintiff's side is that they were also invited but did not attend. The only nearest agnate sapinda at the time of the adoption was P.W. No. 5, the sole surviving brother of Ayyanna Kone, There is absolutely no doubt that his consent was sought for by the 2nd defendant and given by him. It is true that he happens to be the natural father of the boy whom the 2nd defendant proposed to take in adoption.
6. Is that consent valid and sufficient? In the absence of the authority of the husband the assent of the kinsmen is necessary to enable the widow to make a valid adoption. This principle was laid down by their Lordships of the Privy Council after an elaborate discussion of the several aspects of the question in the well-known case reported as Collector of Madura v. Moottoo Ramalinga Sethupatky 12 M.I.A. 297 : 1 B.L.R. 1 : 10 W.R. 17 : 2 Suther 135 : 2 Sar. 361 (P.C.). At p. 442 page of 12 M.I.A.--Ed., their Lordships observe as follows:
The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption.
7. As to the nature of the consent the general principle laid down by their Lordships is m these terms:
All that can be said is that there should be such evidence of the assent 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.
8. This principle has been the subject of comment and interpretation in very many cases which have subsequently been decided during the course of more than half a century. The real difficulty is in the application of this principle to the particular circumstances of each case, and in the drawing of a proper and reasonable inference from the facts disclosed. That there must be a conscious exercise of discretion by the assenting sapinda is well recognised. It is argued by K.V. Krishnaswami Ayyar for the 1st respondent that the evidence adduced by the plaintiff as regards the nature of the consent falls short of the requisites laid down by the Privy Council. It is urged that the mere request of the 2nd defendant to give the boy (the plaintiff) in adoption to her, even if acceded to by the natural father (P.W. No. 6), is not enough in the absence of specific evidence that there was a deliberation between them and other kinsmen as to the desirability of the adoption in the spiritual interests of Ayyanna Kone. In this connection the following observations in Subramanyam v. Venkamrna 26, 627 : 13 M.L.J. 238 may be usefully quoted:
The presumptive reversionary heir or heirs are the nearest of kin to the deceased husband and as such the natural advisers of the widow and if his or their assent be obtained and the same be given bona fide and not from any corrupt motive that would be sufficient authority on which he could act and it would not be necessary that she should seek the assent of remoter reversionary heirs.
9. In the present case not Only did the nearest reversioner give his consent to the adoption when sought for by the widow but the opinion of the near relations including some of Dayadis also was taken. It is very difficult for us, to hold that in giving the assent there was no conscious exercise of discretion by P.W. No. 6.
10. The next question is, was that assent given with any corrupt or mala fide motive; When assent is given by a person who is competent to give it, the presumption is that it was given bona fide. As observed by Venkata Krishnamma v. Annapurnamma 23 M. 486 : 10 M.L.J. 73 adoption being a proper act it will be presumed that when the majority of the sapindas have given their assent, such assent was given on bona fide grounds. That learned Judge further says, that it would be for the objector to establish that the assent of the sapindas who consented to the adoption was not given bona fide. Their Lordships of the Privy Council have observed in what is known as the Gunturs case reported in Veltanki Venkata Krishna Rao v. Venkata Rama Lakshmi 1 M. 174 : 4 I.A. 1 : 26 W.R. 21 : 3 Sar. 669 (P.C.)hat it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow. The presumption is that the widow acted from the proper motives which ought to actuate a Hindu female, and such presumption should be made until the contrary is shown. Is there any basis in the present case for inferring that P.W. No. 6 was actuated by any corrupt or improper motives in giving his assent. If his assent was procured by payment of any money consideration to him, it would certainly be tainted with corruption. No such suggestion has been made. On the other hand, a frail attempt was made to show that the 2nd defendant was given some money by P.W. No. 6 for making the adoption. Though, a sum of Rs. 2,000 was borrowed under Exhibit II some days before the adoption, there is nothing to show that that money was utilised in payment of the 2nd defendant to induce her to adopt the boy. The lower Court has rejected this suggestion as untenable and we agree that it is a baseless suggestion. The mere fact that in giving the assent to this adoption his son would be benefited, cannot be twisted for the purpose of showing that the motive for giving the consent is an improper one. There is no personal gain to P.W. No. 6 by the adoption of his son by the 2nd defendant. In every case of adoption some one or other in the line of heirs will be disappointed. That is no reason for attacking the validity of the adoption on the ground that the consent was given with an improper motive. In this connection, 'we have to refer to one circumstance and see how the bearing of it is on the question we are considering. Subsequent to the death of Ayyana Kone, his two brothers, viz., P.W. No. 6 and Veerabhardra Kone set up a claim to his properties though they were divided brothers, alleging that by reason of the custom prevailing in their community the property of one who dies without male issue will go to his divided brothers in ' preference to his widows. That litigation was started in the Munsif's Court and went up to the High Court. Veerabhadra Kone died during the course of that litigation. In the first two Courts the alleged custom was negatived. Plaintiff's Witness No. 6 preferred a second appeal to the High Court. It was during the pendency 'of the second appeal the adoption in question was made. Reference was made to it in Ex. O itself. It is argued on behalf of the 1st respondent, that as P.W. No. 6 was not very hopeful of success in the second appeal, the idea of giving his son in adoption to the 2nd defendant in order to secure that estate at least to the plaintiff must have sprung up. The motive of the giver may not be very material. There is no evidence in support of the existence of such a motive. The above argument is based more or less on a conjecture. However, this act of adoption resorted to by the 2nd defendant is certainly in conformity with the intentions of her husband himself, as shown by his conduct in bringing up the plaintiff and in getting him perform the obsequies of the deceased Solai Achi. That Ayyanna Kone had a desire to perpetuate his line is not open to doubt. What the 2nd defendant did had the effect of carrying out those intentions. She derived no personal gain to herself by this adoption, and even if P.W. No. 6 thought that his son would be benefited, though he himself might lose in his own litigation, it cannot be deemed that by giving his assent he was actuated by improper and corrupt motives or that the widow acted capriciously.'
11. The next point is whether the consent given by P.W. No. 6 as the nearest reversioner is sufficient in the eye of law. The consent of the nearest sapinda even if he be one has been held to be sufficient, vide Subramanya v. Venkamma 26 M. 267 : 13 M.L.J. 238 and Veerabasavaraju v. Balasurya Prasada Rao 48 Ind. Cas. 706 : 41 M. 998 : A.I.R. 1918 P.C. 97 : 45 I.A. 265 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 C.L.J. 184 : 9 L.W. 243 : 21 Bom. L.R. 238 : 1 U.P.L.R. (P.C.) 18 (P.C.). These two decisions have been followed in a recent Full Bench decision of this High Court reported in Kalaga Annapurnamma v. Kalaga Appayya Sastri 119 Ind. Cas. 389 : 52 M. 620 : A.I.R. 1929 Mad. 577 : 29 L.W. 858 : 56 M.L.J. 760 : Ind. Rul. (1929) Mad. 933 M.--[Ed.], the Full Bench has observed as follows:
It is also settled that the condition regarding the consent of the hasband's kindred is sufficiently satisfied if the consent of the nearest sapindas even if there be only one such--be obtained, they being by virtue of the relationship the most competent advisers of the widow and the proper judges of the propriety of her act in making the adoption.
12. In other case reported in Krishnayya Rao v. Raja of Pittapur : (1928)55MLJ894 Sir Kumaraswami Sastri, J. has remarked thus:
So far as I am aware, the validity of the consent of a sapinda whose son is adopted has never been doubted.
13. I a similar case, such consent was held to be valid by Madhavan Nair and Jackson, JJ., after a review of the authorities, in a very, recent decision: Murahari Brahma Sastri v. Chilulcuri Sumitrama : AIR1934Mad191 .
14. A further point raised by Mr. Krishnaswami Ayyar for the 1st respondent is one upon which there is conflict of judicial opinion. His contention is that even a daughter's son is a sapinda whose consent also should be sought for by the widow. A daughter's son is doubtless a cognate, but he is a nearer heir than an agnatic sapinda, such as the brother of the deceased. In the case reported in Viswasundara Row v. Somasundara Rao 59 Ind. Cas. 609 : A.I.R. 1920 Mad. 451 : 43 M. 846, decided by Oldfield and Phillips, JJ., it was held that a daughter's son is not entitled to be consulted regarding an adoption by a widow who has obtained the consent of the nearest sapindas as he is not a gnati and bhinnagothra sapindas are not included under the term 'sapindas' in the texts which require their consent to an adoption. Even in the Privy Council decision in Veerabasararaju v. Balasurya Prasada Rao 48 Ind. Cas. 706 : 41 M. 998 : A.I.R. 1918 P.C. 97 : 45 I.A. 265 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 C.L.J. 184 : 9 L.W. 243 : 21 Bom. L.R. 238 : 1 U.P.L.R. (P.C.) 18 it is stated 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. This proposition is stated to be. established in the Ramnad case, Collector of Madura v. Moottoo Ramaliyiga Sethupathy : AIR1929Mad577 The same view has been adopted by Jackson, J, in the case reported in Brahmayya v. Ralayya : AIR1925Mad67 . But this view has been dissented from by the other learned Judge (Ramesam, J.) in the same case, after an exhaustive review of the authorities. The question whether a daughter's son comes within the category of sapin das who would be consulted arose in another case reported in Kesar Singh v. Secretary of State for India 95 Ind. Cas. 651 : 49 M. 652 : A.I.R. 1926 Mad. 881 : 52 M.L.J. 16 : (1926) M.W.N. 540 : A.I.R. 1926 Mad. 881 : 24 L.W. 878. The learned Judges after an exhaustive survey of the authorities held, that in the absence of agnate reversioners, a Hindu widow can, in Southern India, adopt with the consent of the nearest cognate reversioner. Such a question does not arise in the present case, because besides the daughter's sons who are cognate reversioners there are also agnate reversioners. The question whether the consent of a daughter's son though cognate, should be obtained in spite of the consent given by the nearest male agnate did not directly arise for decision in Kesar Singh's case 95 Ind. Cas. 651 : 49 M. 652 : A.I.R. 1926 Mad. 881 : 1926 52 M.L.J. 16 : (1926) M.W.N. 540 : A.I.R. 1926 Mad. 881 : 24 L.W. 878 In the present case, the daughter's sons (the defendant's sons) who were in existence at the time of the adoption were all minors. There is uniformity of judicial opinion that a minor is incapable of forming a judgment in a matter of this kind, and therefore his consent need not be sought for, though he is a sapinda whose assent would be requisite, if he were a major. That being so, it is unnecessary for us to deal with this question raised in the course of the arguments.
15. Mr. Krishnaswami Ayyar, the learned Advocate for the 1st respondent, put forward a rather ingenious contention on the basis of some general observations made by the Privy Council in the Ramnad case in Collector of Madura v. Moottoo Ramalinga Sethupathy 12 M.I.A. 297 : 1 B.L.R. 1 : 10 W.R. 17 : 2 Suther 135 : 2 Sar. 361 as to the possibility of an inference of an implied prohibition by the husband against an adoption from certain circumstances. One of them is the existence of a direct line competent to the full performance of religious duties. The real point that was actually decided in the Ramnad case was, that the assent of the majority of the sapindas was sufficient. We are not referred to any authority showing that an implied prohibition against adoption was inferred from the fact of the existence of daughter's son on the basis of the said passage. The mere existence of a daughter's son has not been urged as a circumstance indicating an implied prohibition by the husband against an adoption, in the long series of cases which have come up for decision subsequent to the Ramnad case. If the interpretation now sought to be put upon that passage is either clear or correct such a contention could have been very easily raised in those cases. We are not prepared to put any such construction on the observations of the Privy Council in Collector of Madura v. Moottoo Ramal inga Sethupathy 12 M.I.A. 297 : 1 B.L.R. 1 : 10 W.R. 17 : 2 Suther 135 : 2 Sar. 361 and we, therefore, hold this objection to be a futile one.
16. In the result, we hold that the alleged adoption of the plaintiff by the 2nd defendant to her husband Ayyanna Kone is true and also valid in law.
17. Before closing, we may refer to another contention put forward by Mr. Krishnaswami Ayyar for the 1st respondent, and that is, that the plaintiff as the adopted son of the 2nd defendant cannot during her life-time sue to set aside the alienation made by her and recover possession. But this view which was held in Sreeramulu v. Krishnamma 26 M. 143 : 12 M.L.J. 197 has been overruled in a Full Bench decision reported in Vaidyanatha Sastri v. Savithri Ammal 42 Ind. Cas. 245 : 41 M. 75 : A.I.R. 1918 Mad. 469 : 33 M.L.J. 387 : (1917) M.W.N. 653 : 22 M.L.T. 275 : 6 L.W. 542 (F.B.). The adopted son could sue even during the life-time of the widow to set aside the alienation and need not wait till the death of the widow as a reversioner has to do. The plaintiff, therefore, cannot be non suited on the ground that his cause of action has not yet arisen.
18. We are unable to agree with the lower Court that the adoption of the plaintiff is invalid and set aside its decree based on that finding. As the other issues have not been determined by the lower Court, the suit is remanded to that Court for a rehearing and disposal according to law. The appellant will get his costs of this appeal from the 1st respondent, and the costs of the suit will abide the result.