1. We regret we are unable to accept the finding of the learned Subordinate Judge that the assent of the sapindas relied on and proved is this case is not enough. At one part of his judgment he says 'The consent seems to have been obtained by the representation that the husband had given her authority to adopt.' If this sentence is the only sentence in the judgment it may be possible to argue that he meant to give a finding that the consent was obtained by such representation and no weight is to be attached to the word 'seems.' But later on he said 'for aught one knows, they might simply have relied on the representation, etc.' This later sentence shows that he had in his mind only the possibility that the consent was obtained by such representation. All that he meant to find was that the defendants did not displace such possibility. It seems to us that a finding of this kind is not enough to reject the sapindas assent.
2. It is true that a sapinda's assent, to be the foundation of the adoption, must be obtained uninfluenced by any statement of the widow that there was also the husband's authority if the evidence shows that the widow made such a statement. In Subrahmanyan v. Venkamma 26 M. 627 : 13 M.L.J. 239 it appears as to the assent of the remoter gnatis that the widow 'herself in her evidence states that she obtained their oral assent to the adoption by representing it to each of them that she had her husband's authority'. As to the 3rd defendant's assent the learned Judges say that it 'would undoubtedly be inefficacious if it could be regarded as having been influenced by the widow's allegations of authority from her husband.' The cases in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Krishoro Patta Deo 1 M. 69; 11 Mad. Jur. 188 : 3 I.A. 154 : 25 W.R. 291 : 3 Sar. P.C.J. 583 : 3 Suth. P.C.J. 263 : 1 Ind. Dec. 45 and Ganesa Ratnamaiyar v. Gopala 55 2 M. 270; 7 I.A. 173 : 4 Sar. P.C.J. 149 : 3 Suth. P.C.J. 740 : 1 Ind. Jur. 360 : 1 Ind. Dec. 459 are very clear cases against the sapindas consent. In the former case, the widow representing herself as having the written permission of her husband to adopt, asked the Rajah 'to give her a son in adoption' and not to assent to the adoption. So in Ganesa Ratnamaiyar v. Gopala Ratnamaiyar 2 M. 270; 7 I.A. 173 : 4 Sar. P.C.J. 149 : 3 Suth. P.C.J. 740 : 1 Ind. Jur. 360 : 1 Ind. Dec. 459 the adoption was made 'in pursuance of a permission given by her husband' and the application to Sami Iyer was 'to give his son to be adopted in conformity with the authority which she had received from her husband'. These cases do not help us.
2. Without laying any rule of burden of proof as to whether the party relying on the consent should show, that it was uninfluenced by the widow's statement about the husband's authority or the party attacking should show that it was so influenced, we think the record in this case shows not only that there is no evidence that the assent was given under the influence on the representation by the widow but, on the other hand, also that the assent was uninfluenced by the representation if any. Four witnesses were examined to prove the assent. Only two (defendants Nos. 2 and 5) say that the widow also mentioned her husband's authority. The other two make no reference to it. It is possible that defendant witnesses Nos. 2 and 5 were only romancing. But accepting the view of the Subordinate Judge (as we are bound to in second appeal) that the witnesses were giving true evidence we think that the evidence amounts to this, viz., that Veerama made an incidental mention of the husband's authority and not that she put it forth to the sapindas in applying for their consent. Defendant witness No. 2 says 'Veeramma also told me that her husband had also given her permission. W. also gave the permission.' Defendant witness No. 5 says 'Veeramma said her husband etc.' The earlier statement of defendant witness No. 2 'we were always willing for it' shows that his assent was given independently of the mention of the husband's authority. This is how the District Munsif who heard the witnesses answers and translated them into his own English idiom, understood it. We accept his understanding of the evidence. We are not weighing the credibility of any evidence or deciding whether a witness should be believed or not but are only construing the statement of the witness. The appeal will be allowed and the plaintiffs suit dismissed with costs throughout.