1. This is an appeal from the decree of the District Judge of Godavari in O.S. No. 34 of 1919 on his file which was a suit brought by the respondent the Maharajah of Pittapuram to have it declared that the adoption of the 2nd defendant by the 1st defendant, the widow of Venkata Rao, her deceased husband, is invalid and not binding on the plaintiff and not affecting his rights in any way. The suit was decreed in plaintiff's favour by the District Judge and hence the appeal to us by the 2nd defendant. The 1st defendant it may be mentioned died pending the appeal and in her place Surya Prakasa Rao has been brought on the record provisionally as the 3rd respondent.
2. The genealogical table given below shows the relationship of the parties concerned in this litigation and will serve to elucidate some of the questions raised:
(1) NILADRI RAO
| | |
(2) Surya Rao, (3) Lakshmi Venkayamma. (4) Venkat Rao,
died 1850, died Decem-
(no issue). ber 1869
| | | | |
(5) Niladri Rao, (6) Gangadhara (7) Surya (8) Venkata Rao, |
died 1854, Rama Rao, Prakasa Rao died 4-11-1871, |
no issue. born 18-14, adopted to no issue, |
died 1890 Bobbili. widow 1st |
| defendant |
| (another widow |
| Venkayamma |
| Rao, who died). |
| | | |
Adopted (12) Plaintiff (9) Surya Rao, (10) Dharma Rao
(11) Ramakrishna born 1885, died 1887, no died in 1881,
1873, | issue, widow no issue.
died April 1914 several minor Chellayamma.
| | | | |
(13) Gangadhara (14) Rajagopal. (15) Rajamannar (16) Sri Krishna, (17) Murale
Rama Rao adopted. 2nd Defendant, Krishna (minor)
3. Gangadhara Rama Rao (No. 6 in the pedigree) the old Rajah as he is hereafter called in this judgment, when he was the zemindar carved out the estate of Gollaprolu which is the subject-matter of this litigation from his Pittapur Estate and granted it to his brother Venkata Rao (No. 8 in the pedigree) in lieu of maintenance by deed Ex. O, dated the 8th December 1869 (Ex. 0-I being its counter part). There was some dispute as to the nature of this grant but it was admitted before us by the plaintiff's Vakil that it was an absolute grant. Venkata Rao died in 1871 leaving as his widow the 1st defendant Ramayamma but no issue. The adoption in dispute in the present suit was made by Ramayamma to her deceased husband Venkata Rao on the 15th February 1914 in Madras, the person adopted being Sri Krishna (No. 16 in the pedigree) the fourth son of Ramakrishna (No. 11 in the pedigree) who had himself been adopted by the old Raja in 1873. Sri Krishna was a major at the time of his adoption, a very unusual circumstance as ordinarily minors are adopted and there was his minor brother Murale Krishna available. It is this adoption that plaintiff is seeking to invalidate as one of the nearest reversioners of Venkata Rao being according to him the aurasa son of the old Raja. Defendants while supporting the validity of the adoption denied that plaintiff was a reversioner of Venkata Rao as according to them he was not the son of the old Raja by his wife Mangayamma as alleged but a stranger boy a supposititious child fraudulently put forward as his son by her and they pleaded that he was, therefore, not entitled to dispute the 2nd defendant's adoption.
4. Two main issues arose for decision on the pleadings besides some subsidiary ones. The first question related to the alleged aurasa sonship of the plaintiff; it was split up into two parts as the burden of proving that he was the son of his alleged mother Mangayamma was on the plaintiff whereas when that is established the defendants had to prove under Section 112 of the Evidence Act that the old Raja had no access to Mangayamma at any Lime that the plaintiff could have been begotten.
5. The issues were thus framed as
1 (a) whether the plaintiff is the son born of Raja Mangayamma Garu and
1 (6) if so, is he not the aurasa son of the Raja Gangadhara Rama Rao.
6. The other issue was issue No. 3.
Whether the adoption of 2nd defendant by the 1st defendant is true and valid.
7. These are the issues we have to consider in this appeal.
8. Before, however, dealing with the evidence regarding issues Nos. 1(a) and 1(6) a preliminary question arises for decision regarding the admissibility in evidence of certain documents which were tendered by the defendants in the lower Court but were rejected by that Court and which are again tendered in this Court in C.M.P. No. 554 of 1921. A list of them is given on page 956 of the paper-book, Vol. I, parts I and II and they have been printed in a separate book. They consist mainly of public copies of 4 depositions of witnesses taken in O.S. No. 6 of 1891 with other documents asked to be admitted along with these depositions as they are referred to in them or are required to explain them. The case of these other documents need not be considered apart from that of the depositions.
9. The admissibility of these depositions in evidence in the present case is governed by Section 33 of the Evidence Act which deals with the admission of evidence given by witnesses in a former judicial proceeding as evidence in a subsequent judicial proceeding. There are three provisos to the section which must be complied with before such evidence can be admitted; we are here concerned really only with the first proviso which requires 'that the proceeding was between the same parties or their representatives-in-interest.' The District Judge has held that this condition is not fulfilled in the present case and I agree with him.
10. The evidence sought to be admitted was given in what is called the 1st Pittapur case O.S. No. 6 of 1891. That was a suit brought by Ramskrishna against the present plaintiff and the Court of Wards as his guardian to recover possession of the zemindari of Pittapur which had been taken possession of by the Court of Wards on behalf of the present plaintiff. There was no doubt an issue in that case as to whether the present plaintiff was the aurasa son of the old Raja and large body of oral evidence was adduced on both sides. Though the first Court had given a finding against the present plaintiff on the point the High Court in appeal and the Privy Council on further appeal did not go into the question. It is true the same issue has arisen in the present case but Ramakrishna is not a party here though plaintiff is. It is only if any of the defendants here can be held to be 'the representative-in-interest' of Ramakrishna in the previous suit that Section 33 proviso will apply. It is not contended that the 1st defendant the widow is in any sense such a representative. But it is strenuously argued for the appellant that the 2nd defendant is such a representative. It seems impossible to hold that 2nd defendant is not sued here as the adopted son of Venkata Rao with reference to Gollaprolu estate and as such it is difficult to see how he could be treated as the representative of Ramakrishna who was suing to recover Pittapur Estate in his own right as the next heir of the old Raja on his death. If any one could be treated as his representative-in-interest it will only be his eldest son who might succeed him in the zemindari on his demise. Even as one of the junior sons of Ramakrishna, the 2nd defendant cannot be treated as his representative; he is sued in the present suit only as the adopted son of Venkata Rao.
11. A lengthy argument was addressed to us as to the meaning of the words 'their representative in-interest' in the section. It was said that the words meant a person who had the same interest in the question at issue as the person or persons in the second judicial proceeding irrespective of what the subject-matter of the second proceedings was and it was argued that as Ramakrishna and his sons and other members of the Pittapur family were equally interested in preventing a stranger from entering into the family circle as a member of it and as such entry was a common danger to all the members to be warded off, Ramakrishna is a representative-in-interest of the 2nd defendant whether one looks upon him in his capacity as Ramakrishna's son or in his capacity as the adopted son of Venkata Rao for the latter was also a member of the Pittapur family. Though Venkata Rao was divided from the old Raja as the result of Exs. O and O-1 still it is said he is not divided from him as to the impartible zemindari of Pittapur. These are ingenious contentions which are difficult to follow and are based on the contention that when the proviso talks of 'their representatives' we must read the word 'their' as referring to the parties in the second proceeding. The use of the word 'was' in the past tense in the proviso it is argued shows that 'the proceeding' referred to in it, must be the earlier or the first proceeding and the proviso when expanded would then read as follows: 'that the first judicial proceeding was between the same parties as in the second judicial proceeding or between the representatives-in-interest of the parties in the second judicial proceeding.' The wording of this proviso is perhaps a little defective as pointed out by Ameer Ali and Woodroffe in their book 'The Law of Evidence applicable to British India' 8th Edition, page 353; instead of the words 'their representative-in-interest' the words should have been 'those whom they represent in interest,' or the word 'is' should have been used instead of 'was' no that the proceeding may be read as the second proceeding. The meaning, however, seems to me quite clear and has never been doubted; the parties in the second proceedings in which evidence is tendered must be the representative-in-interest of the parties in the first proceeding, or in other words should be persons who derive their title through or claim under them or shortly are their privies. The English rule is stated very clearly in Taylor on Evidence 11th Edition, para 467 as follows: 'Evidence taken on the first trial is admissible in a second trial if, although the two trials be not between the same parties the second trial is between persons who legally represent the former parties or are their privies in estate.' Halsbury's Laws of England states the rule in para. 751, Vol. 13, page 546 thus 'at common law depositions taken in a judicial proceeding are admissible in evidence in a subsequent judicial proceeding in proof of the facts stated therein provided the proceedings are between the same parties or their privies.' The observations of Lord Cottenham in Humphreys v. Pensam (1836) 10 E.R. 498 : 1 My. & Or. 582 chat 'depositions, can only be read for or against those who are parties or privies to the suit in which the depositions were taken; and they cannot be read for a party, unless they can also be read against him' are cited.
12. There is no reason to suppose that the Indian rule is in any way different from the English rule on this point. The words 'representative-in-interest' occur also in Section 21 of the Evidence Act and there they cannot possibly, have the meaning suggested by the appellant's Vakil. There is no reason to construe the same expression differently in different sections of the same Act.
13. Appellant's Vakil has cited certain cases on res judicata where a finding in a suit brought against a widow representing the estate of her husband has been held to be res judicata against the reversioners in Risal Singh v. Balwant Singh : (1919)21BOMLR511 and Yaithialinga Mudaliar v. Srirangath Anni : (1926)28BOMLR173 Those decisions are based on the fact that the widow represents the estate for herself and the reversioners and on a principle analogous to that embodied in Explanation VI to Section 11, Civil Procedure Code, the latter should be held to claim under her. The case of the vatandar in Radhabai v. Anantrav Bhagvant Deshpande 9 B. 198 : 5 Ind. Dec. 133 proceeds on a similar principle. They recognize no doubt a certain extension of the rule of res judicata and such extension has also been recognized with reference to Section 33 of the Evidence Act in the case of Patinharkurn v. Raman Varma 24 Ind. Cas. 519 : 28 M.L.J. 669 in the case of holders of Malabar Stanoms. But the position in the case before us is not in any way analogous to those cases. Here Ramakrishna was not litigating on behalf of anybody but himself. The English cases in which such extensions have been rocognized are representative actions as in Hanover v. Hemfray (1882) 19 Ch. D. 224.
14. The argument that Section 33 can be applied without any reference to the subject-matter of the two suits seems clearly wrong. The case of Doe v. Earl of Derby (1834) 1 Ad. & E1. 783 : 3 N & M. 782 : 3 L.J.K.B. 191 : 110 E.R. 1406 : 40 R.R. 423 shows that the same title must have come into question in each case. The words 'representative-in-interest' clearly shows that we have to consider the interest involved in each case and they must be the same, or similar. Without reference to the subject-matter it cannot be predicated that one is the representative-in-interest of another. Here we have two different and distinct estates involved in the two suits, the Pittapur and Gollaprolu Estates. Oh this ground also the evidence tendered must be rejected.
15. For the above reasons I agree with the District Judge that the depositions tendered are inadmissible in evidence in this case. We have now to consider issues Nos. 1 (a) and 1 (b) on the evidence on record.
16. I shall now proceed to consider issue No. 1 (a) first which raises the question whether Mangayamma is the mother of the plaintiff as alleged by him or not. The circumstances leading up to the alleged birth of the plaintiff may be briefly stated. Mangayamma was married in 18551 when she was. 18 years' old, and had attained her puberty, to the old Raja who was then a lad of 17. They lived together in Pittapur but she showed no signs of pregnancy. The Raja married a second wife Sitayamma in 1865 and again a third wife Subbayamma generally known as Nuzvid Rani in 1871. In 1879 he again married his fourth wife Ramayamma, who, however, died soon after in 1882. Not having any children by any of his wives he seems to have' conceived the idea of taking a boy as his son in adoption as he was anxious to defeat the claims of Surya Rao (No. 9 in the pedigree) who would succeed to his estate if he died issueless, and whom he particularly disliked. His choice fell upon Ramakrishna (No. 11 in the pedigree), the brother of the late Rajah of Venkatagiri and of the present Maharajah i of Bobbili. He adopted Ramakrishna in September 1873. In 1881 Mangayamma developed what seemed to be symptoms of pregnancy and her Seemantham ceremony was performed on a grand scale at Samalkota in April 1881. It is not disputed that it was generally believed that she was really pregnant (see para. 14 of the District Judge's judgment). The old Raja was undoubtedly of that opinion as appears from his letters to his legal adviser and friend Mr. Willie Grant of Madras and to his agent Venkatarangam Chetti in Madras. See Exs. LX (z), XXXVIII (a), LX (c), LX (d) LX (aa), XXXVIII (d), LX (j), LX (e), LX (f), LX (g), LX (h), LX (k) and LX (1).
17. Seemantham, it may be mentioned, is the ceremony performed among Hindus at the first pregnancy of a woman, generally between the fourth and the eighth months of pregnancy. Mangayamma went away soon, after to her parents' house in Tiruvur for confinement and remained there in all for over three years. It would appear from the evidence that she had what seemed like labour pains after the ordinary period of gestation of nine months but she brought forth no child at all. All the appearances of pregnancy still continued. The evidence is that they continued for 4 nine months' periods, that is for three years in all, when they mysteriously disappeared and she regained her normal appearance; and the witnesses say her menses were re-established. The witnesses who speak on the point are P. Ws. Nos. 97, 98, 99, 100 and to some extent 101. There does not seem to be any special reason to discredit their evidence or to think Mangayamma was merely feigning. The symptoms would seem to suggest that the lady had what is known to medical science as 'Spurious pregnancy' or pseudocyesis. Several medical works were cited to us as to this peculiar condition of women; among them were Gallabin and Blacker's Practice of Midwifery, page 191, Play fair's Science and Practice of Midwifery, Vol, I, page 182 and the recent publication of Fairbairn called Gyncology with Obstetrics, page 103. The following passage may be quoted from Fairbairn to understand what spurious pregnancy is like and how it is caused. 'pseudocyesis is the term used for cases in which signs and symptoms simulating pregnancy are present, sometimes deceiving patient and medical adviser. The condition occurs most frequently in women with an intense desire for a child, those married late in life or near the climacteric or those to whom a successor is important for financial or family reasons. There may be some mental instability or actual delusion, of the error of which it is impossible to convince the patient. In other cases the pregnancy may be feigned, to obtain damages, force marriage, or extract blackmail, or in the case of a married woman as a preliminary to producing a suppositious child. In such cases there may be amenorrhoea, indefinite changes and the woman may state that she has morning sickness, and has felt movements which has led to the loosening of her garments. There may be a definite swelling of the abdomen simulating pregnancy, followed by a spurious labour.'
18. It is the defendants' case on the other hand that she had no appearance of pregnancy at all in Tiruvur but was only pretending that she had, watching all the time for an opportunity to get hold of a male child and pass it off as her own son. The Venkatagiri people on behalf of Ramakrishna seem to have gone to the length of setting up spies in Tiruvur to watch the movements of Mangayamma to see whether she was making any attempt to smuggle a child and to prevent it. I am inclined to think there was no real ground for the suspicion. It is true they have called a witness D.W. No. 15 who speaks of such an attempt but as he is discredited by the District Judge (para. 20 of judgment) and is entirely uncorroborated, I can place no reliance on him. In any case there was no child either born of Mangayamma or smuggled by her in Tiruvur.
19. While Mangayamma was in Tiruvur the old Rajah married three more wives in succession in the course of 3 months from April to June 1884, namely, the Viravaram Rani, the Chitrada Rani and the Bobbili Rani. This seems to have wakened up Mangayamma lest she lose the favour of her husband and she came away from Tiruvur in August 1834 to Rajahmundry where she stayed till November, whence she went over to the Rajah's residence in Pittapur itself.
20. While she was thus living in Pittapur it is the plaintiff's case that she became again pregnant by the Rajah about the end of January or beginning of February and that he was born as the result of that pregnancy as the son of Mangayamma and the Rajah on the night of the 5th October, 1885.
21. It is the case of both sides that on the night of the 5th of October a child was in Mangayamma's room in the Fort and that child is the plaintiff. The real question for decision is whether that child was a child given birth to at the time by Mangayamma or was a child of a stranger woman smuggled into her apartments from outside by her dasis Jalde Appi and P. Seetha with the help of her confidential servant Kanakayya as alleged for the defendants. Considering this event took place over 40 years ago the plaintiff being now 41 years old a good portion of the evidence has been lost by the death of witnesses; and one has to bear in mind also that the witnesses are now speaking to events which happened long ago. The contention of the appellant's learned Vakil before us mainly is that the circumstances of this case indicate the extreme improbability of Mangayamma having become pregnant and having given birth to a child on the night in question and he, therefore, asks us to accept as true the evidence given by the two dasis Appi and Seetha as to the introduction of the child and to hold that the plaintiff is not the son of Mangayamma. The circumstances he refers to are:
1. The fact that the pregnancy in question here is the first pregnancy of a woman who was 40 years old and who had been married and living with her husband for about 24 years and yet was sterile till then.
2. Spurious pregnancy occurs in sterile women generally at their climacteric or the period of their menopause and thereafter conception is impossible or extremely rare.
3. The old Rajah wag suffering from obesity, diabetes, gonorrhea of 15 years' standing and other diseases and was probably impotent and he is not likely to have impregnated Mangayamma in February 1885 as alleged; she had no symptoms of pregnancy in Pittapur.
4. The evidence of what took place in Mangayamma's room indicates that there were really no labour pains and no child birth. These are the contentions raised and they may each be considered separately.
22. As regards No. 1 it is no doubt true that the likelihood of first pregnancy in a woman of 40 is very small. Nevertheless it cannot be said that she will not conceive; such conceptions though rare are known. Appellant's Vakil himself does not deny it. He places more stress upon his second objection based on Mangayamma's spurious pregnancy. The medical books cited no doubt do countenance the idea that in sterile women pseudocyesis appears generally towards the time of menopause but here again it is not a necessary inference from pseudocyesis that menopause has occurred and that no further pregnancy will take place. Dr. Hingston the medical expert examined as P.W. No. 103 says that spurious pregnancy rather helps towards subsequent real pregnancy than hinders it. In the case of Mangayamma there is positive evidence that she had menses after the symptoms of spurious pregnancy subsided in Tiruvur (P. Ws. Nos. 97 to 100) and again she had them for some months, after the plaintiff's birth; the District Judge has referred to this evidence in para. 45 of his judgment; and corroborated as it is by entries in the accounts there is no reason to distrust it. Menopause occurs in India according to Dr. Hangston about the 45th year; in England the chances of conception and of childbirth are not taken to have come to an end till a woman is 52 or 53 years old. There is thus nothing in these two above-mentioned circumstances to militate necessarily against the truth of Mangayamma's delivery. The utmost that could be said is that it would be an occurrence of an unusual character. The third objection taken rather depends upon issue No. 1 (6) dealing with the old Rajah's powers of potency. This issue itself was not very seriously pressed before us as the learned Vakil for the appellants rightly appreciated that the evidence now on record was too meagre to establish impotency more especially, in view of the fact that Viravaram Rani, one of the wives of the old Kajah, was admittedly actually pregnant between February and October 1885 and gave birth to a daughter, soon after plaintiff was born. It was feebly suggested that this child was the result of an act of unchastity on the part of the Rani committed while she was in her parents' house where she had gone about the time. It is easy to make such an imputation but there is no proof of it at all. It must be rejected. If the Rajah could have a child by Viravaram Rani in spite of his ailments, he could have another at the same time by Mangayamma unless she was incapable of conception. Objection. No. 3 is also thus not of any force.
23. The 4th objection depends on the evidence as to Mangayamma's appearance before plaintiff's birth and as to what took place on the night of the 5th October 1885 when plaintiff was said to have been born. Defence case is that there were no symptoms of pregnancy in Mangayamma before the birth of plaintiff, but as pointed out by the District Judge in paras. 21 and 22 of his judgment there is a considerable body of evidence on the plaintiff's side of old and respectable ladies who speak to her having all the appearance of a pregnant woman before the plaintiff's birth and of losing that appearance thereafter, The evidence of some of these witnesses is, it is true, open to attack; they are distant relations of the plaintiff's or interested witnesses, but even leaving them out there is sufficient evidence to think that Mangayamma did have the appearance that these witnesses speak to. The District Judge has carefully analysed this evidence at length and it is unnecessary for me to go into it in detail again. In fact this evidence is one of the strong points on which the plaintiff's Vakil relies. It should be noted that it is not the defendants' case that Mangayamma had an attack of spurious pregnancy while in Pittapur, in which case the appearances might be consistent with their case. The next point urged was that the evidence as to the commencement of labour pains on the 5th on plaintiff's side is very discrepant, some witnesses putting them as having begun in the morning, others at different hours of the day and some even so late as in the evening. It is said that there were really no labour pains at all, as the evidence is that the old Raja and the Doctor Dharmaraju P.W. No. 48 were all asleep at the time that Mangayamma was being confined; this, it is said, is a very unnatural condition of affairs, as Mangayamma as a primipai would have suffered great pain and would have screamed out and created sufficient noise to wake up all sleepers if she was really being confined. It is also pointed out that there is a discrepancy in the plaintiff's evidence regarding the cutting of naval cord of the child. These criticisms do not seem to me to carry much force. The important thing is the evidence as to Mangayamma getting labour pains that day, for that would indicate her subsequent confinement, and there is a good deal of evidence on the point which the District Judge has referred to at length in para. 26.
24. The absence of a midwife in the room was also commented upon. Ordinarily one would have expected a midwife to be present but the Ranis seem to be content with having their maids to attend on them and act as midwives. The same procedure was adopted in the case of Viravaram Rani's confinement some 15 days after. The absence of a midwife does not, therefore, lead to any suspicion. There was Dr. Dharmaraju, P.W. No. 48, ready to help if anything went wrong. His evidence which the District Judge has accepted and which there is nothing definite to justify one in rejecting speaks to his having remained outside the Rani's room to be ready to help. The old Raja has no doubt given a very handsome pension to him which is continued by the plaintiff and a house worth Rs. 2,000; but it does not follow that this favour was shown to him to make him give false evidence in support of the fact of the child being the Raja's child. It was also urged by the appellant's Vakil that plaintiff has adduced no evidence as to his actual birth from the womb of Mangayamma, Bodithi, a dasi, and Chitrada Rani who were both present besides others are now dead and gone and as 40 years have now elapsed since the event no great weight can be attached to this criticism. What is proved clearly indicates that Mangayamma gave birth to the child.
25. The evidence of Dr. Dharmaraju is very material in the matter as he and the Raja went into Mangayamma's room immediately after the plaintiff's birth was announced and he felt the pulse of the lady and saw the afterbirth on the ground. His evidence is very clearly in favour of the plaintiff's case. I have already stated that there is no good reason for discrediting him. Defendant's objections except that they throw some suspicions on the plaintiff's story are not in my opinion, sufficient to justify us in discrediting it altogether. The question then is, can we believe the evidence of the two dasis Appi and Seetha who speak directly to the introduction of the spurious child. They give a rather fantastic story that on the 5th October late in the day they were suddenly called by Mangayamma who confided to them her intention to smuggle a child and asked them to help in the matter by going at night to the wall of Lakshminarayana Doddi on the outskirts of the fort and bringing away the child which they were told that one Kanakayya would bring there and they agreed. The story on the face of it does not look a very probable one. If Mangayamma was really smuggling a child she would have taken greater precautions than confide to these dasis who are not shown to be her confidential dasis. The dasis do not seem to have taken any particular precautions themselves, but only went to Kanakayya and brought the child he had ready there. The risk of discovery was great and yet nothing seems to have been done by way of precaution. Bodithi, another dasi, is said to have gone and brought the afterbirth through another route where she had to pass through certain parahs or guards. Seetha has not been examined as a witness now, as she is dead, but the evidence given by her in the previous suit has been filed and read. It was admitted under Section 32, Clause (3) of the Evidence Act on the ground that her evidence made her liable to prosecution as an abettor of the crime of introducing a spurious child. The respondent's Vakil has objected to this evidence and it is doubtful whether it is admissible. Assuming however, it is, there is only her evidence and Appi's, to support the defendant's story of the child being smuggled. The District Judge who heard the evidence of Appi has discredited her as being a worthless witness and it is not possible for us in appeal to rely on such a witness. Seetha gives the same story. They are both witnesses of no particular credit and are on their own showing accomplices and I must decline to act on their evidence especially as it is in contradiction of the evidence on the plaintiff's side which seems to be far more reliable. It is clear that at any rate it is entirely inadequate to justify us in interfering in appeal with the District Judge and holding that the plaintiff the Maharajah is not the son of his parents.
26. As pointed out by respondent's Vakil, the very moment the old Rajah was appraised of the plaintiff's birth he accepted him as his aurasa son and proclaimed him to the world to be such. On the very night guns were fired from Pittapur Fort. The Brahmins were given presents. Relations and friends and important officials were informed of the event. There is a good deal of evidence to show that the Rajah's relations all accepted plaintiff as the Rajah's son and attended his Bharasala and Annaprasanam ceremonies and treated him as the real son of the Rajah. The learned District Judge has set out all this evidence at full length and it is, therefore, unnecessary to discuss it again.
27. It is clear that the plaintiff's parents fully recognized him as their son and he was treated by all others as his son. Rama Krishna who stood to lose so much by the birth of the son took no immediate steps to challenge it except to write a letter some six months after, asking the old Rajah for particulars of the birth of his son to which the Rajah replied indignantly that he had already informed him of the event by telegram at the time; it was only after the old Rajah's death in 189(3 that Rama Krishna ventured to challenge it in a Court of Law.
28. Now it has been laid down by the House of Lords in the famous Douglas Peerage case reported in Notable British trials; Scotch series, the Douglas cause on page 152 that 'where a child establishes the possession of filiation which is the acknowledgment of the parents, and habit and repute everything must be presumed in his favour and he cannot be dispossessed of that estate except upon clear, strong and decisive evidence' Though in the present case the burden was initially on the plaintiff to show that he was the son of Mangayamma it was shifted on to the defendants as soon as he showed that he had been acknowledged by his parents to be their son and that he has been accepted as such by repute and habit for the last 40 years; it would require much clearer and stronger and more reliable evidence on the defendant's part to justify a finding against the plaintiff's paternity.
29. The motherhood of Mangayamma being found, it is conceded that there is no case to disprove the fatherhood of the old Rajah.
30. In these circumstances, I accept the District Judge's findings on issues Nos. 1(a) and 1 (6) and find that plaintiff is the aurasa son of the late Rajah of Pittapur, Gangadhara Rama Rao.
31. The next issue for consideration is the 3rd issue as to the truth and validity of the adoption of the 2nd defendant by the 1st defendant. The truth of the adoption is not now disputed. The adoption ceremony was carried out on the morning of the 15th February, 1914, in Moti Mahal in Madras in the presence of a number of very respectable witnesses who have all attested the registered deed of adoption, Ex. XVI. The evidence is conclusive on the point. The suggestion made on the plaintiff's side in the lower Court that Rama Krishna was not in a state of health or mind to take part in the adoption ceremony or to give away the boy in adoption is not now persisted in. The homam was subsequently performed in the bungalow of the Maharajah of Bobbilli. The question that remains is thus only as to the validity of the adoption.
32. The plaintiff's objections to the validity of the adoption are formulated by the District Judge in para. 121 of his judgment.
33. They may be stated as follows:
(1) The 1st defendant made no bona fide attempt to obtain plaintiff's consent; she had made up her mind to adopt the 2nd defendant whether plaintiff consented or not and her letter, Ex. EE-9, asking for consent was sent as a mere formality.
(2) Plaintiff's refusal was proper and justified on account of the unfitness of the boy and of the nature of the arrangements under which the adoption was made.
(3) Rama Krishna's consent by itself wa ineffective and legally insufficient to suppor the adoption. Plaintiff being the aurasa son of the late Raja and, therefore, of superior status to him and the head of the family, his objection should prevail.
(4) The adoption being made 40 years after 1st defendant's husband's death under the influence of her brothers and nephews and from corrupt and improper motives to defeat the plaintiff's reversionary right and to secure half the estate and other benefits for herself and for her brothers it is invalid.
(5) She had no power of adoption as her husband had entered into an agreement not to adopt and that implied a prohibition by him to her not to adopt.
34. These are the objections which have been urged before us as well and they are the ones we have to deal with.
35. The District Judge has upheld the first objection and thinks that the 1st defendant did not make a bona fide attempt to get plaintiff's consent and did not care to be influenced by his advice and that that ground alone was sufficient to hold the adoption to be invalid. He deals with the point in para. 130 of his judgment. I am of opinion that on the evidence this view cannot be supported. We find that after obtaining Rama Krishna's consent letter, Ex. XV (a), dated 30th January, 1914, she wrote to plaintiff her letter Ex. EE-9, on the 2nd of February for his consent. As she was proposing to adopt Rama Krishna's son she had naturally to make sure of his consent first. There is nothing wrong in the wording of letter Ex. EE-9; in fact the plaintiff admitted 'in the witness-box that it was a proper letter. It is now discovered that it does not expressly mention that plaintiff is a sapinda. That is of no importance; it is as a sapinda that plaintiff has asked his consent and in no other capacity. The District Judge says that she had made up her mind to adopt before sending Ex. EE-9 whether plaintiff consented or not. No doubt she had provisionally arranged to take 2nd defendant in adoption but there is nothing to justify the conclusion that she had finally made up her mind on the point or that she would not have listened to plaintiff's advice if there were good reasons for it. Her conduct in sending him a reminder, Ex. EE-10, on 7th February 1914 giving her altered address when she did not get plaintiff's reply promptly clearly shows that she was anxious to have his reply before making the adoption. As a matter of fact she made the adoption only some 2 or 3 days after she received his reply, Ex. EE-11. It is true she had made arrangements toper-form the adoption sometime previous to receiving plaintiff's reply. She might have done so in the hope that plaintiff would not object. The District Judge mentions it as a point against the 1st defendant that she did not send EE-9 by a special messenger, but by registered post. Surely she cannot be blamed for sending an important letter like Ex. EE 9 by registered post. Whatever other objection may be urged to the adoption, I think objection No. 1 is a futile one and must be rejected.
36. Taking objection No. 5 next, I agree with the District Judge that there is no force in it either. It is true that in the agreement Ex. 0 1, para. 8 (counter-part Ex. O), there is a covenant by the 1st defendant's husband Venkata Row not to adopt with a counter-covenant by the plaintiff's father not to adopt either. These are personal covenants and it is not explained how it could bind the 1st defendant. It is said that it implies a prohibition against the widow by the husband not to adopt. Now plaintiff's father did not consider himself bound by the covenant and he adopted Ramakrishna in spite of it. Why should Venkata Row be treated as in a different position and his covenant be treated as even amounting to a prohibition to his widow. I agree with the District Judge that an implied prohibition is sufficient to prevent a widow adopting; it is not necessary to prove an express prohibition. The Ramnad case Collector of Madura v. Mottoo Ramalinga Sathupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. l : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. 1 : 3 Mad. Jur. 298 shows it and the statement in Sri Balasu Gurulingaswami v. Sri Balusu Ramalakshmamma 22 M. 398 : 21 A. 460 : 26 I.A. 113 : 1 Bom. L.R. 226 : 3 C.W.N. 427 : 9 M.L.J. 67 : 7 Sar. P.C.J. 330 : 8 Ind. Dec. 286 is not intended to lay down a different rule See Shiyali Subraya Chetti v. Calve Subraya Chettiar 37 Ind. Cas. 404 : 21 M.L.T. 315 : 5 L.W. 740. But I consider the circumstances here do not show-any implied prohibition at all. This objection also fails.
37. Before taking up the other objections for consideration, I think it necessary to set out what I consider to be the facts proved in connection with the adoption. Plaintiff swears that some time before the adoption, in 1913, the 1st defendant applied to him for pecuniary help and though the latter denies it I think it is true. Plaintiff's evidence is corroborated by the fact that the 1st defendant's brother Sitaramaswami also spoke about money help to plaintiff's then Dewan P.W. No. 111, who is a First Grade, Deputy Collector whose services had been lent by the Government to the plaintiff. His evidence on the point is accepted by the District Judge and there is no reason for us not to do so. Some letters, Ex, BE series, were produced in corroboration of plaintiffs statement, but the 1st defendant denies her connection with those which ask for money. I agree with the District Judge that the letters were sent by her or with her knowledge, for reasons given by him and I find that the 1st defendant did ask plaintiff for money in 1913. The last letter was in December 1913 and it was then that the 1st defendant knew for certain that she could not expect any financial help from plaintiff. We find the idea of the adoption developed shortly thereafter. It may be as D.W. No. 1 says that the idea was first mooted a year previous to the actual adoption, but nothing much was done then regarding it. According to his evidence the present adoption was settled about 20 or 30 days before it took place (see page 421 of his evidence). That would be about the 15th or 20th of January 1914. It is not too far fetched a suggestion, therefore, to make that the idea of carrying out the adoption had some connection with 1st defendant's failure to raise money from the plaintiff. That she evidently wanted money is made manifest by the fact that she borrowed some Rs. 2 1/2 lakhs from the Rajah of Venkatagiri in July, 1914, soon after she was in a position to offer him proper security by obtaining half the Gollaprolu Estate absolutely as the result of the adoption. We find the day after the adoption, the adopted boy executing two deeds, one settling half the Gallaprolu Estate absolutely on the 1st defendant Ex. XVII and the other Ex. XVII (a) binding him to give her a maintenance of Rs. 600 a month. It is also in evidence that his marriage with the daughter of 1st defendant's brother Sitaramaswami had been arranged to take place on the day after the adoption. It had to be put off on account of the absence of the Maharaja of Venkatagiri but it actually took place early in March. It is the plaintiffs case that these were all conditions attached to the adoption. Defendants contend that the adoption stood by itself, independent of these arrangements which were made separately by the adopted boy of his own free-will and choice. It is in this connexion that a good deal of argument was addressed to us as to when the adoption was 'settled.' If the word 'settled' is to be understood as meaning that the negotiations about the adoption resulted in an understanding that Ramakrishna was to give his son in adoption and the 1st defendant was to take him in adoption it may be that it was 'settled' in January as D.W. No. 1 says. It is, however, clear that all the terms were not then settled nor possibly even proposed. It does not follow that the 1st defendant did not mean to ask for the other terms as well. Subsequently we find that before the adoption was actually made it was agreed between the parties that the terms about settlement, maintenance and possibly marriage should be carried out. Defendant witness No. 1 himself speaks to this. Probably there was no talk about the Venkatagiri loan at the time as it was an arrangement to be made with a third party, the Raja of Venkatagiri. Whatever the position may be as regards the marriage of the 2nd defendant, the arrangements about the settlement and the maintenance must have been made sometime before the 6th of February for we find the stamp-papers purchased for the two deeds XVII and XVII (a) on the 6th February along with the stamp for the adoption deed Ex. XVI. It is too much to ask one to believe that the settlement and maintenance arrangements had no intrinsic connection with the adoption; there can be no doubt, as the District Judge remarks in para. 110 of his judgment that the terms embodied in Exs. XVII and XVII (a) were settled as part of the adoption arrangement' before the adoption was made; the whole is one transaction. Whether the marriage is part of that transaction or not is perhaps open to doubt. It seems to me, therefore, we have to judge of the validity of the adoption on the footing that it was carried out by the 1st defendant in part at least with the object of and for the purpose of getting half her deceased husband's estate into her absolute control so that she may dispose of it as she pleased, by either mortgaging it to raise money as she did under Ex. XVIII or by alienating it in toto as she did by Will in favour of one of her nephews. The 1st defendant may well be credited with an intention to benefit her deceased husband's soul as that is always a consideration for an adoption but her main object was undoubtedly to get her husband's property or as much of it as she could get, into her own hands absolutely.
38. On these facts it is urged that the widow's motive in making the adoption must be held to be corrupt and improper and the adoption held to be bad in consequence, and that in any case the plaintiff was justified in relying on such motive in refusing his consent to the adoption and that plaintiff having properly refused his consent, the assent of one only, viz., Ramakrishna of two sapindas is not enough to validate the widow's adoption. These are, in other words, the three remaining objections raised by the plaintiff. I am inclined to think there is force in these objections.
39. It was in the Ramnad case, Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. l : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. (n.s.) 1 : 3 Mad. Jur. 298 that the Privy Council first laid down that in the Dravida country a Hindu widow not having her husband's authority may nevertheless if authorized by the consent of his kinsmen validly adopt a son to him. There is also in that case the oft-quoted passage that '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.' There is nothing in any Hindu texts that deals with assent of kinsmen and, therefore, the law as to the nature and extent of assent that is necessary to validate an adoption must be gathered from the Privy Council and other decisions.
40. The second Privy Council case on the point is the Berhampore case; Sri Viradu Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo 1 M. 69 : 3 I.A. 154 : 11 Mad Jur. 188 : 25 W.B. 291 : 3 Sar. P.C.J. 583 : 3 Suth. P.C.J. 263 : 1 Ind. Dec. 45 ] The decision itself is not in point as the husband's authority was found but there are some observations in it which are of importance. Their Lordships say (page 83 Pages of 1 id.--[Ed.]) 'that though the religious duty of adopting a son may be the essential foundation of the law of adoption and the effect of adoption on devolution of property a mere legal consequence it was not impossible to see that there are grave social objections to making the succession of property and it may be in the case of collateral succession as in the present instance, the rights of parties in actual possession, dependent on the caprice of a woman subject to all the pernicious influences which interested advisers are too apt...to exert over women possessed of, or capable of exercising dominion over, property.'
41. This was followed by the Guntur or Vellanki case Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi 1 M. 174 : 4 I.A. 1 : 1 Ind. Jur. 63 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 3 Suth. P.C.J. 353 : 1 Ind. Dec. 116. Hera again it is the observation of the Privy Council on page 190 Pages of 1 id.--[Ed.] that is of importance. Their Lordships say '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, and that all that 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 sapindas, 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.'
42. The next case which went to the Privy Council is the case of Venkamma v. Subramaniam 30 M. 50 : 34 I.A. 22 : 9 Bom. L.R. 89 : 4 A.L.J. 150 : 5 Cri.L.J. 140 : 11 C.W.N. 345 : 17 M.L.J. 114 : 2 M.L.T. 91 where their Lordships accepted the view of this Court that the failure to consult one of the nearest sapindas, could not be justified on the ground that he would have refused if consulted and was fatal to the adoption. In the next case, the Urlam case Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R.18 : 45 I.A. 265 they reiterate that the failure to consult one of the nearest reversioners on the ground that it was known that he would refuse was a futile reason.
43. There is an observation in this case that if the majority of sapindas assent and one refuses his objection may be discounted. As some reliance was placed by Mr. Ramachandra Ayyar for the appellants on it I shall deal with it later on when considering his argument on the point,
44. The latest Privy Council case is that of Kristnayya v. Lakshmipathi 56 Ind. Cas. 391 : 39 M.L.J. 70 : 18 A.L.J. 601; (1920) M.W.N. 385 : 24 C.W.N. 905 : 28 M.L.T. 70 : 43 M. 650 : 12 L.W. 625 : 47 I.A. 99. Their Lordships say 'what is required is the consent of a majority of agnates nearest in relationship who are capable of forming an intelligent and honest judgment in the matter and that save in exceptional cases the consent of the nearest sapindas must be asked and if not asked it is no excuse to say that they would have refused.' They also observed that if from a corrupt or malicious motives near relative refuses his consent, his dissent may be disregarded.
45. These are the Privy Council cases on the question of widow's adoption with the consent of sapindas. It is clear that so far as sapindas are concerned all the nearest ones must be consulted but if any one of them gives or refuses his consent from corrupt or malicious motives his action may be ignored. The rule that a sapinda's dissent from interested or improper motives can be discounted is clearly brought out in the case of Parasara Bhattar v. Rangaraja Bhattar 2 M. 202 : 4 Ind. Jur. 393 : 1 Ind. Dec. 412 where it was held in the case of two sapindas, one assenting and the other dissenting, that the adoption was valid as the refusal was from interested and improper motives.
46. The question, however, of the effect of the widow's motive on the validity of the adoption is not quite easy to decide. In Bombay it has been held in the Full Bench case in Ramchandra Bhagavan v. Mulji Nanabhai 22 B. 558 : 11 Ind. Dec.954 that the discussion of the widow's motive in making an adoption is irrelevant. It is true that there is a difference between that Presidency and this on the law as to widow's powers of adoption. In that Presidency in the absence of authority from the husband the widow can adopt a son to him at her own choice if she has not been prohibited by him from adopting, whereas in this Presidency the widow requires the assent of kinsmen before she can adopt. This difference, however, does not seem to me to make any difference on the question whether the Court can canvass the widow's motive when she has obtained the consent of the kinsmen when her power is coextensive with that of her husband: see Sri Bahusu Gurulingaswami v. Sri Balusa Ramalakshmamma 22 M. 398 : 21 A. 460 : 26 I.A. 113 : 1 Bom. L.R. 226 : 3 C.W.N. 427 : 9 M.L.J. 67 : 7 Sar. P.C.J. 330 : 8 Ind. Dec. 286. But it would certainly be a very proper ground for a kinsman to consider when he is called upon by the widow for his consent and I conceive that a kinsman would be justified in refusing his assent if he finds that the widow's motive in proposing the adoption is in part at least corrupt or improper.
47. In this connection the case in Bhaiya Rabidat Singh v. Indar Kunwar 16 C. 556 : 16 I.A. 53 : 13 Ind. Jur. 98 : 5 Sar. P.C.J. 505 : Rafique and Jackson's P.C. No. 110 : 8 Ind. Dec. 367 was also cited. That case seems to show that even if the widow was actuated by a corrupt motive that in itself will not vitiate the adoption but the condition attached will be invalid. Following the Bombay Full Bench I must hold that the corrupt motive of the widow in stipulating for the gift to her of half her husband's estate cannot be relied on by the Court to declare the adoption invalid.
48. But the position is entirely different when we are considering the question whether there is sufficient evidence of assent of kinsmen to support the adoption in the present case. One argument of the learned Vakil for the appellant based on the observation in the Urlam case Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R. 18 : 45 I.A. 265 (P.C.)] is that if the majority of sapindas consent but one dissents, his dissent may be ignored. Now the nearest reversioners to 1st defendant's husband Venkata Rao are plaintiff and Ramakrishna. Plaintiff's sons and Ramakrishna's sons would be the reversioners of the next degree. Plaintiff has refused his assent. His sons are all minors. Of Ramakrishna's sons Gangadhara Rao No. 13 and Rajagopal No. 14 are majors. It was argued that these latter were also consenting parties to the adoption and, therefore, there was a majority in favour of the adoption and the dissent of plaintiff may in consequence be ignored. Now, as a matter of fact, Gangadhara was never consulted as his whereabouts at the time, it is said, was not known. First defendant says: He asked Rajagopal orally and he consented. He is, no doubt, one of the attesting witnesses to the deed of adoption and I think he may be regarded as a consenting party, But I do not think that the Privy Council meant to lay down that a count was to be taken of the votes of both the nearest and the remoter sapindas and the matter of the validity of the adoption decided by the number in favour of adoption irrespective of their position.
49. It seems to me that if the question is to be decided by a majority it must be by a majority of the nearest sapindas and there must be such a substantial majority as to justify the conclusion that the adoption is proper and is made in the bona fide performance of a religious duty. If the refusal to consent of the dissenting minority is shown to be based upon proper and valid grounds, the mere fact of a majority being in favour of the adoption should not, I think, prevail. In the present case there are only two nearest sapindas, one assenting and one dissenting, and no question of majority, therefore comes in. If the dissent of the dissenting sapinda the plaintiff is shown to be unreasonable it may be ignored and I agree with the District Judge that in that case the assent of Ramakrishna alone would be sufficient to validate the adoption. But if, on the other hand, plaintiff's objection is well-founded there can be no doubt on the authorities that the adoption cannot be supported.
50. Several reasons were stated by the plaintiff for his refusal in his reply Ex. EE-11 to the 1st defendant and in the plaint. Many of them are futile. The objection that the boy selected is the son of an enemy of plaintiff's is, I think, not a valid objection as he is already a member of the plaintiff's joint family. The adoption, if anything, makes him a more remote member than he was before. The objection that the adoption would deprive plaintiff of his inheritance is a personal one and it has been always held that such an objection is not a valid one: sea Venkatarama Raju v. Bapamma : AIR1915Mad759 . But one objection is, I think, a valid and strong one, namely, that in making the adoption the widow was actuated by the desire to get her husband's property into her own control, so that she may deal with, it as she pleased. As I have stated above it is certainly open to the kinsman to take the widow's motive into consideration in refusing his assent. The widow's motive was in this particular distinctly corrupt and if a sapinda could not take into consideration such a motive in refusing his assent there will be no way of preventing widows making adoptions, improperly to benefit themselves and their own relations. It was argued that it was not a matter of sapinda's concern but only the adopted boy's concern whether he keeps the estate he gets by adoption or gives it away. It was also pointed out that the boy adopted here was a major and was thus able to exercise his own choice. I do not think these arguments are of any force; for the question whether the adopted boy should be subjected to a condition to give away the estate to the widow is a matter for consideration before adoption and by the sapindas. If neither the Court nor the sapindas could consider the impropriety of a widow's action in making an adoption for the purpose of getting her husband's estate into her control there will be no way of preventing such adoption. Whatever weight one may attach to the religious benefits flowing from an adoption one cannot ignore the secular rights flowing from it. Their Lordships of the Privy Council have pointed this out in the Urlam case Veerabasavaraju Pontulu v. Balasurya Prasad Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R.18 : 45 I.A. 265 They have also referred with approval to the opinion of Golap Chander Sarkar in his book on Hindu Law that adoption is more a temporal than a spiritual concern. The temporal side cannot in any case be overlooked.
51. I have for the above reasons come to the conclusion that plaintiff was justified in withholding his consent to the 2nd defendant's adoption and in face of his dissent it is clear that there is not such an assent of kinsmen as to support the adoption. I agree with the District Judge that the adoption must be set aside, though not with all his reasons. I would, therefore, dismiss the appeal with costs of the plaintiff--1st respondent.
Venkatasubba Rao, J.
52. The suit out of which this appeal arises was brought by the Raja of Pittapur to obtain a declaration that the adoption of the 2nd defendant made by the 1st defendant, the widow of his uncle. Venkata Rao, is invalid and not binding upon his reversionary interest. The suit having been decided in favour of the plaintiff by the District Judge of Godavari, the present appeal has been filed by the defendants questioning the correctness of the decision. The facts which have led up to this suit. I shall briefly narrate. The following predigree will serve to explain the relationship of the parties:
Niladri Rao. Baviamma
| | | |
Surya Rao Lakshmi Venkayamma. Venkata Rao |
(died in 1850). (died on |
|_________________ 30-12-1869) |
| | | | |
Niladri Rao Gangadhara Surya Venkata |
(died in 1851). Rama Rao Prakasa Rao Rao, died |
(born, 1844, (adopted to 4-11--1871: |
died 1890) Bobbili. 1st defendant |
_____________|_________ Ramayamma. |
| | |
Plaintiff Adopted Rama- |
(born 1885). krishna on |
died on April 1914 |
| | | | | |
Gangadhara Rajagopal. Rajamannar. Sri Krishniah, Murale Krishana. |
Rama Rao. 2nd defendant, |
adopted to |
1st defendant |
Surya Rao Dharma Rao
died in 1897: (died in 1881),
53. Gangadhara Rama Rao was the late Raja of Pittapur and he adopted in 1873 Ramakrishna, the second son of the Raja of Venkatagiri. It was alleged that on the 5th October, 1885, a son was born to his senior wife Mangayamma and that son is the present plaintiff. Gangadhara Rama Rao died in July, 1890. having previously made a Will bequeathing to the plaintiff whom he recognized as his son, the zemindari of Pittapur The Court of Wards look possession of the estate on behalf of the plaintiff who was then an infant and Ramakrishna filed a suit in 1891. (O.S. No. 6 of 1891) to obtain a declaration that the plaintiff was the son neither of the late Raja nor of his wife and that he was the rightful owner of the estate. The District Judge of Godavari who tried that suit upheld the contention of Ramakrishna and passed a decree in his favour. The case was taken to the High Court by the present plaintiff and the appeal was disposed of in his favour on the ground that he took the estate the High Court and the result was that the plaintiff got the estate, but the issue regarding his paternal or maternal origin was left undecided.
54. Now to go back to the late Rajah, he granted in December, 1869 to his brother Venkata Rao Gollaprolu estate (see Exs. O and O-1), a part of the larger Pittapur estate. It is conceded before us by the plaintiffs learned Vakil that what was granted to Venkata Reo was an absolute estate though this point was disputed in the lower Court. Venkata Rao died in 1871 without issue leaving the 1st defendant, his widow, surviving him. In 1886 she made an adoption alleging that she had her husband's authority to adopt. The validity of this adoption was questioned by the plaintiff, legal proceedings followed and it was ultimately set aside in 1891. The 1st defendant made a second adoption in 1914, the boy adopted, the 2nd defendant, being the son of Ramakrishna already mentioned. It is alleged for the defence that valid assent of sapindas or kinsmen was obtained and that the adoption is, therefore, valid. It is the validity of this adoption that is impeached in the present suit.
55. The defence while contending that the 2nd defendant's adoption is valid also disputes the plaintiff's right to maintain the suit. It is alleged that the plaintiff is not the son of the late Rajah and is, therefore, not the reversionary heir entitled to question the adoption. This suit thus raises the very question which was raised in the previous suit but was left open.
56. The two important questions that have to be decided have thus reference to the plaintiff's status and the validity of the 2nd defendant's adoption.
57. I shall first deal with the issue relating to the adoption. It will be convenient to set forth briefly the main facts connected with this point. The 1st defendant was a resident of Undoor, a place near Pittapur. Her case is that after the Court declared that the earlier adoption made by her was invalid, she continued to have the desire of adopting a boy and that she took legal opinion about the year 1901 and was advised that she could adopt after obtaining the consent of her husband's kinsmen. Till 1914, nothing very important occurred. She applied by Ex. 15-B, dated the 27th January, 1914, for Ramakrishna's consent and he sent a reply Ex. 15 A dated the 30th January, 1914 consenting to the adoption. She similarly wrote to certain distant sapindas on the 3rd of February, 1914, and they also sent replies consenting. A sapinda so consulted was Subbayamma, one of the surviving widows of the late Rajah and she also wrote notifying her consent. On the 2nd of February, she wrote to the plaintiff asking for his consent (see Ex. EE 9). The 1st defendant despatched these various letters from Undoor and she left that place for Madras on the 3rd of February, and reached Madras on the 4th. In the letter to Ramakrishna she not only asked him in his capacity of a sapinda for his assent but she made a request that he should give his own son, the 2nd defendant, in adoption. In his reply Ramakrishna as sapinda consented to the adoption, and as the natural father of the boy agreed to the latter being adopted. The dates I have mentioned are important on account of certain points in regard to which there has been much controversy. It will be seen that before she left Undoor the 1st defendant had applied for the plaintiff's consent. Finding that he sent no reply, she sent him a reminder from Madras (Ex.-EE-10), dated the 7th February, 1914. The plaintiff sent his reply from Pittapur (Ex. EE-11), dated the 11th February, 1914, which was received by the 1st defendant at Madras on the 12th February 1924. By his letter the plaintiff refused to consent but the 1st defendant nevertheless made the adoption on the 15th of February and on the 16th two deeds were executed, which will be referred to in this judgment, as settlement and maintenance deeds (Exs. 17 and.17-A). By the first of these deeds, the adopted boy gives away absolutely to the 1st defendant half of the Gollaprolu Estate; by the second he agrees to pay his adoptive mother maintenance at the rate of Rs. 500 per month charging it upon his half share of the estate. The defence maintains that the arrangement was come to after the 1st defendant reached Madras; in other words some time after the adoption itself was settled.
58. The 2nd defendant married the niece of the 1st defendant on the 4th of March, 1914, and the plaintiff suggests that this was also a term of the adoption. In July 1914, the 1st defendant and her brothers mortgaged the moiety that fell to the 1st defendant's share (along with certain properties belonging to her brothers) and borrowed a sum of about Rs. 2 1/2 lakhs from the Raja of Venkatagiri, the brother of Ramakrishna. It is suggested that this was also a term of the adoption,
59. The plaintiff's case is that these terms were settled simultaneously with the settling of the adoption and that, as a matter of fact, there was a single transaction and that the terms cannot be separated from the adoption itself, and that it is invalid as it was merely intended to be a cloak for the securing of a portion of the property by the 1st defendant and her relations. -
60. I am here merely indicating the contentions, but I shall notice the various points connected with them later on.
61. As the points raised relate to the motives of the widow--not an easy subject to deal with--it will become necessary to very carefully follow the course of events and the evidence relating to them.
62. The adoption is attacked also on other grounds. It is said that the 1st defendant's husband had undertaken not to adopt and that she is bound by that promise. It is further urged that in any event, from her husband's promise, may be implied a prohibition against the 1st defendant adopting. Next it is urged that Ramakrishna on the date of the adoption was physically' and mentally unfit to take part in the ceremony or to understand the effect of his act.
63. I shall deal with these various points under the following headings:
I. When was the adoption settled?
II. When were the terms settled and what relation do they bear to the adoption itself?
III. Was Ramakrishna physically or mentally unfit either to consent or to give the boy in adoption?
IV. The consent of the sapindas
V. Express understanding not to adopt and implied prohibition.
I. When was the adoption settled?
64. Pakam Kuppiah, D.W. No. 1, took an important part in bringing about the adoption. He was in the service of the Raja of Venkatagiri, whose confidence he seems to have enjoyed. He says that the subject of this adoption was first broached a year before it actually took place. His evidence in regard to this is very circumstantial. The 1st defendant had a nephew (sister's son) by name Prakasa Rao. He was also related by marriage to the Raja of Venkatagiri. He was living at Undoor in a house adjacent to that of the 1st defendant. The witness has been acquainted with Prakasa Rao since the latter's marriage and was in the habit of going to Undoor to visit him. When he was at Undoor on such a visit, the 1st defendant sent him word through Prakasa Rao that she desired to adopt the 2nd defendant and that the witness should speak to the Raja of Venkatagiri regarding the subject. Ha accordingly carried the message to the Raja who in his turn referred him to Ramakrishna. The witness then spoke to Ramakrishna who after some consideration signified his assent.
65. Nothing further transpired for the time being and the adoption was finally settled about 20 or 30 days before it took place.
66. Seetharamayya, D.W. No. 27, is the brother of the 1st; defendant and his evidence is substantially the same as that of D.W. No. 1. After the 1st defendant was defeated in the previous adoption suit, she continued to cherish the idea of making an adoption and consulted as early as in 1901, Mr. S. Srinivasa Ayyangar who represents the Rajah of Pittapur in the present suit. This fact has not been denied. He confirms the previous witness in regard to these two facts, that this adoption was first thought of a year previously and that it was finally settled one month before it took place.
67. Defendant witness No. 2'2 is the nephew of the 1st defendant and Seetharamayya. He also speaks to the fact that this adoption was first mooted about a year previously.
68. The 1st defendant herself gives important evidence on this point. For long she had a desire to make an adoption, but she expected trouble from the plaintiff, a man of great power and influence. She consequently put off the adoption and when her health began to give way she thought it was no longer prudent to postpone it. She opened negotiations about a year previous to the adoption and about a month prior to it it was finally settled. She asserts that the sequel justified her fears in regard to the attitude of the plaintiff, The moment she made the adoption, the plaintiff, she says, brought three criminal cases against herself and her brothers making grave charges against them. When the criminal cases ended favourably to them, the plaintiff launched the present action.
69. Now we turn to the evidence of the 2nd defendant, which, in my opinion, is very valuable. He was about 21 years old at the time when he was adopted. He says that he first heard of the proposal to adopt him about 7 or 8 months before the adoption and that it was finally settled about a month prior to it. His father Ramakrishna conveyed to him the desire of the 1st defendant and asked his opinion. His answer was that if the elders were in favour of it he would also agree.
70. I have now set forth the evidence which remains uncontradicted and the only conclusion possible is, that the 1st defendant resolved to make the adoption before leaving Undoor for Madras and about a month prior to the date on which it actually took place. As I shall show presently, there was then no talk or discussion regarding any terms subject to which the adoption was to be made and it follows from this that any arrangement subsequently made cannot be regarded as having influenced her mind in arriving at the decision.
II. When were the terms settled and what relation do they bear to the adoption itself?
71. Pakam Kuppiah, D.W. No. 1, gives very clear evidence on this point. The adoption was finally settled when the 1st defendant was at Undoor about a month before it actually took place. She came to Madras 10 or 15 days before the ceremony of adoption. It was after her arrival at Madras that the terms were discussed. Till then there was no mention of the terms at all and according to this evidence it was impossible that the 1st defendant could have been influenced by any factors extraneous to the adoption when she finally agreed to adopt before leaving Undoor. This witness (D.W. No. 1) describes the course that events took. The 1st defendant mentioned to him that she had debts to the extent of about 2 lakhs and that the boy to be adopted, while taking the entire estate, should be also prepared to discharge those debts. He mentioned this matter to Ramakrishna who directed him to interview the boy himself as he was a major. He, therefore, spoke to the boy who said that he would prefer not to be encumbered with debts but had no objection to allow the 1st defendant to take absolutely half of the estate out of which she could herself meet the debts. This proposal was agreed to by the 1st defendant. In regard to her maintenance she wanted Rs. 600 and the 2nd defendant agreed to pay that sum. In cross-examination the witness makes a distinct statement that these terms were settled only about 8 or 10 days before the adoption. In regard to the loan of 2 1/2 lakhs of rupees, he asserts that there was no talk regarding it prior to the adoption and that the matter was first mooted more than three months after the boy was adopted. In regard to the 2nd defendant's marriage it was also arranged not before but after the 1st defendant's arrival at Madras. The evidence of D.W. No. 27 is to the same effect. It is unnecessary to refer to it at length and I may state that almost word for word his evidence agrees in this respect with what the previous witness has stated. It was this man's daughter that the 2nd defendant married and he asserts, that before he and his sister had left Undoor there was no talk of this marriage. The first reference to it, he says, was at Moti Mahal at Madras. The Raja of Venkatagiri pointed out that the 2nd defendant would after the adoption live amidst strangers and that it would be in the interests of the boy, that an alliance such as this should be formed. It was this suggestion that was accepted and acted on, In regard to the loan of Rs. 2 1/2 lakhs the witness says that it was a transaction quite distinct from the adoption.
72. The evidence of the 1st defendant herself supports this version regarding the terms. She speaks to the fact of her asking the 2nd defendant to take the whole estate and discharge her debts--a suggestion that did not meet with his approval. He preferred to take half the estate free of debts. Her evidence in regard to the loan and the marriage similarly accords with what the previous witnesses have said. The story told by the various witnesses in regard to other particulars also receives support from her evidence.
73. I shall next deal with the evidence of the 2nd defendant. He is, as I have said, a very important witness on the various matters connected with the adoption. He describes the progress of events and shows that at the start there was no intention to make the adoption subject to any terms. As negotiations progressed, the idea of entering into some arrangement was suggested by the 1st defendant and before the date of the adoption the terms were finally and completely settled. The 1st defendant was not anxious to retain half the property; on the contrary she assumed that after the adoption the adopted son would take the whole estate and on that footing proposed that he should discharge her debts. It was his suggestion that the 1st defendant should take half the estate, for, in that event he could be the master of the other half subject to no liabilities. He preferred this course and his father Ramakrishna had no objection to it. At the instance of his uncle, the Raja of Venkatagiri, he agreed to pay Rs. 500 a month as maintenance. He also describes the part played by D.W. No. 1 in these negotiations. He is emphatic that there was no talk regarding these terms at all before the adoption was settled and the subject was first discussed only about a week or ten days prior to it. In regard again to his marriage, his evidence is equally clear and definite. It was settled only about four days before the adoption and was celebrated about 20 days later. This witness also denies that the matter of the loan was in any way connected with the adoption. He heard of it for the first time some months after he was adopted and he had no personal knowledge whatever of the transaction. This is a very brief summary of his evidence which there is no reason to distrust. As the witnesses have been subjected to weary cross-examination, there are apparent contradictions, even when they are in the main speaking the truth; but in the case of this particular witness, it may be said that it is not open to attack to the same extent, that it is marred by contradictions or evasions; on the whole his evidence reads like that of an honest witness who is willing to speak the truth.
74. While I am on this topic I would like to refer to the evidence of D.W. No. 9, Mr. P.V. Krishnaswami Chetti. I do not wish to deal with his evidence piecemeal but I shall state its effect in this connection fully, though I may have to refer to it again under other headings, His evidence throws light on several points at issue and carries much weight from the fact that he at one time was a great figure in legal circles at Madras, although he was obliged later to retire from active practice owing to deafness and act as Chamber-Counsel. The importance of his evidence was realized by both sides and it was, therefore, subjected to the closest analysis. The events to which he speaks, I may set forth in their chronological order:
(1) Pakam Kuppiah (D.W. No. 1) and Seetharamayya (D.W. No. 27) interviewed him on behalf of the 1st defendant more than two months before the adoption. They said that they had been advised by the Maharaja of Venkatagiri whose standing Vakil he was, to consult him. At that interview they informed him that although Venkatagiri was willing, Ramakrishna was hesitating to give his boy in adoption.
(2) Ramakrishna himself interviewed the witness soma weeks (two, three or four) before the adoption. I do not think that the witness can be blamed for not being definite about the time. In course of conversation, the witness asked Ramakrishna what his objections were. He had replied that he had no objection to the lady making an adoption but he objected to give his son in adoption. The reason was, that the 1st defendant belonged to the party of the plaintiff's mother and aunt. He yielded, however, as his brother the Maharaja of Venkatagiri was in favour of the adoption. He asked the witness to write to the Maharaja and inform him that he had made up his mind to give away the boy. The witness accordingly wrote to the Maharaja that day.
(3) Some days after this visit, the witness advised the 1st defendant's brother D.W. No. 27 to apply for Ramakrishna's consent formally. He suggested the lines on which the application was to be drafted.
(4) The witness saw Ramakrishna at his house a week before the adoption. There is nothing of importance that took place during this visit.
(5) The consent in writing of Ramakrishna (not drafted by the witness) was shown to him 3 or 4 days before the adoption and in a day or so after that he prepared a rough draft of the adoption deed.
(6) He became aware of the intended gift of some property to the widow, only sometime after she gave him instructions regarding the adoption deed; may be, three or four days before the adoption. He was not consulted about that and it was the first time he heard of it.
(7) He heard of the 2nd defendant's marriage two or three days after the adoption.
(8) He was consulted again as to the draft of the reply to be sent to the plaintiff who wrote objecting to the adoption. The witness is not prepared to divulge what transpired between him and his client in the matter of his advice regarding the obtaining of the assent to the adoption.
75. The witness was speaking to events which took place more than four years before he was examined and he may not be quite accurate in regard to some dates, but in general I find no reason to reject any part of his testimony. The facts that emerge from his evidence are, that he was professionally consulted by the 1st defendant regarding the adoption more than two months in advance of it, that in the several interviews he was not asked nor did he advise regarding any terms, that the terms, came to his notice for the first time only a few days before the adoption and that the 1st defendant and her friends were anxious to obtain the best possible legal advice to ensure that valid assent--assent sufficient in law--of the kinsmen, was obtained to the adoption. This evidence renders it very probable that what the other witnesses said is true, namely, that when the 1st defendant first thought of the adoption she was not thinking of any terms at all and that when she decided to adopt, her mind could not have been influenced by any arrangement subsequently come to. There is thus a large body of evidence, on this very important subject supporting the defence and this evidence is practically uncontradicted. I say 'practically' because there is one witness examined for the plaintiff who professes to speak from personal knowledge to the events connected with the adoption. He is Narasinga Rao, P.W. No. 113. The learned Judge, though believing him on certain points, is not well impressed with his evidence. He holds a University degree and I have to overcome a natural reluctance on my part to condemn him as a false witness, but I regret to say that after very careful consideration I have formed the opinion that he is unworthy of credit. Though this witness's evidence is relevant under this as well as other headings, it will be convenient to deal with it wholly at once. He is the sheet-anchor of the plaintiff's case on adoption and I, therefore, propose to make a careful analysis of his evidence which relates to four points. First, he asserts that Ramakrishna was physically and mentally unfit to consent to the adoption on the 30th of January, 1914. Exhibit 15-A the writing which bears Ramakrishna's signature, is dated the 30th of January, 1914, and is used by the defence as evidence of his consent, Can this witness be believed when he deposes that Ramakrishna was not in a fit condition on that date to accord consent? He himself attested that exhibit being the first of the attestors and now pretends that he did so, relying on the representation of some servant (whose name he does not know), that Ramakrishna signed it. Secondly, Exs. 17 and 17-A, the settlement and maintenance deeds, respectively, bear the date the 16th of February 1914. He deposes that they were actually executed between the 6th and the 8th February, long before the adoption. Even the plaintiff on whose behalf he made this assertion seemed to have been taken aback; for, he would not go so far and admitted in his plaint that the documents were duly executed on the dates they bore. In these two deeds the 2nd defendant was described by a name which he took after the adoption and there is also a recital that he had been adopted. The witness says that he attested these deeds with the knowledge of the false recital. What is worse, at the time he attested them, space was left blank for inserting later the date of execution with the deliberate object of creating false evidence. He obviously helped to bring into existence a document which was intended to be post-dated. The learned Judge has disbelieved him on this point. Thirdly, he has deposed that Ramakrishna was mentally and physically unfit to take part in the ceremony on the dale of the adoption. This evidence does not require serious notice, contradicted as it is by testimony of several respectable witnesses, and the trial Judge has disbelieved him also in this respect. Fourthly, he deposes that the terms of the adoption were settled one month prior to it and it is this portion of his evidence that the plaintiff strongly relies on. The witness speaks to three incidents. He says that D.W. No. 1 told him that he asked Ramakrishna to give his boy in adoption to the 1st defendant, but that he (Ramakrishna) summarily rejected the proposal saying that he was not willing. Incidently, I may remark that if this evidence is true, it helps the defence very materially. Next he deposes that he was casually present at a conversation between D.W. No. 1 and the 2nd defendant; this, he says was before the 10th January. He then heard D.W. No. 1 tell the 2ad defendant that the 1st defendant was willing to adopt only if certain conditions were complied with, namely, that the 1st defendant was to have half the estate and that the 2nd defendant was to marry the 1st defendant's niece. The boy refused to abide by these terms. On this very important occasion, besides the witness there was nobody else present. Then we pass on to the next stage. The 2nd defendant consulted the witness as regards the proposed adoption and the latter gave him the sage advice 'something was better than nothing' urging him to accept the terms. Thereupon, the 2nd defendant mentioned to D.W. No. 1, that he was willing. At these interviews again nobody was present excepting the witness. Even as regards the loan from the Rajah of Venkatagiri the witness had something to say; he heard of it long before the adoption. Thus we see that on every material point connected with the terms, he supports the plaintiff by his evidence. Wherever it has been possible, he has been shown up, as in the case of Exs. 15A, 17 and 17- A. His part in them on his own showing, to say the least, does him little credit. He was a tutor to the sons of Ramakrishna including the 2ad defendant. He started on a small salary of Rs. 35, which was later raised to Rs. 50. To give an air of probability to his version, he found it necessary to say falsely, that he was also the private secretary of the late Ramakrishna. For holding that important post he received a grand sum of Rs. 10 a month in addition to his salary as tutor. He was confronted with his signatures showing that he received only Rs. 50, the tutor's salary, and he invented the story that he gave two sets of receipts, one for Rs. 50 and the other for Rs. 10. How comes it that this man who was in the service of Ramakrishna figured as an important witness on the plaintiff's side? The story is graphically told in the evidence of the 2nd defendant, which I entirely believe.
76. After the adoption, Narasinga Rao accompanied the 2nd defendant to Undoor. Finding that the young man had come into a large estate, he offered his services as Manager and demanded that he should be permitted to take the profits less what was required by the 2nd defendant for himself and his family or in the alternative should be paid a fixed salary of Rs. 500 a month. To carry out this design, he proposed that the 2nd defendant should separate himself from his mother and that a new building should be constructed at Gollaprolu where they were to take up residence. In addition, he wanted a loan of Rs. 4,000 for himself. The 2nd defendant did not agree to these absurd terms and the relations between them became at once strained. The witness, it must be noted, has been unable to wholly deny in his cross-examination at least some parts of this episode. On the strength of the testimony of a man of this kind, it is impossible to reject the whole body of affirmative and cogent evidence adduced by the defendants in regard to this point.
77. I have dealt with the evidence relating to the terms at some length as the so-called arrangement has been made the target for a very spirited attack on the part of the plaintiff's learned Vakil.
78. What then is the result of this evidence? It unmistakably shows that the adoption had a distinct origin independent of the terms and that the transaction as originally conceived by the 1st defendant was an adoption pure and simple unattended by any conditions. It further shows that as the day of the adoption was approaching, the 1st defendant wanted to have an arrangement made regarding payment of her debts, binding on the boy, she desired to get an undertaking from him that h'e would discharge them. This was a natural, nay, a proper desire on her part as she regarded the debts as morally binding on her though they were not legally binding on the estate with which she was parting. The suggestion that the 1st defendant was to take half the estate emanated from the 2nd defendant who was anxious to retain his half unencumbered by debt--a fact which shows that the arrangement was not, and could not have been a device planned by the widow and her relations to secure any portion of the property.
79. As I am dealing with the question of the widow's motives, I may notice here another contention urged by the plaintiff. He alleges that the 1st defendant applied to him for a loan (or a present) of about two lakhs, that he failed to comply with that request and that she made an adoption with a view to spite him (see para. 9 (ii) of the plaint). The 1st defendant denies that she made any such request and to disprove this allegation the plaintiff has filed Exs. EE to EE 8 which are said either to contain her signature or to be in the handwriting of P.W. No. 22, her nephew, generally employed by her to write her letters. In my opinion, it would be sheer waste of time to try to decide regarding the genuineness of these letters; for independently of them there is the evidence of the plaintiff and of his Diwan, P.W. No. 111, (which may be accepted) to the effect that there was such a request. The plaintiff has sought to make out that till the 3rd or the 4th of January, 1914, the 1st defendant had hopes of getting money from him, but on or about that date she became decisively aware that no help would be forthcoming and that thereupon the 1st defendant, displeased with his conduct and in order to spite him, began to arrange for an adoption. I am clearly of the opinion that the plaintiff has not made out this case. The evidence of Mr. Krishnaswami Chetty to which I have referred, shows beyond doubt that more than two months before the adoption he was interviewed regarding it by D.W. No. 1 and D.W. No. 27. The interview would thus be about the middle of December 1913 and, therefore, some weeks prior to the 3rd or the 4th of January 1914. Further there is evidence that is uncontradicted, that even a year before the adoption Being aware that they would not be legally Ramakrishna was approached with a request to give his son. Granting that the 1st defendant did apply to the plaintiff for money, the latter has signally failed in his attempt to show that that incident and the adoption are related to each other as cause and effect,
80. From these findings it follows as an inevitable conclusion, that the 1st defendant was not influenced in her decision by any indirect, improper or corrupt motives and that the terms which ended in the arrangement, far from exercising an overriding influence on her mind played no part at all as an inducing factor in bringing about the adoption.
81. I find it difficult to arrive at any other conclusion on the evidence on the record, which, as I have said, is practically all one way. But the contention of the plaintiff's learned Vakil amounts to asking us to base our finding on speculative reasoning, rejecting the whole body of positive and direct testimony. He asks us to say that it is more probable that the widow's act was selfish and she was actuated by fraudulent motives. I fail to see why we should refuse to act upon the evidence in the case, and in the absence of compelling circumstances, assume without warrant, that the widow was actuated by improper motives.
82. In considering whether the conduct of the 1st defendant was fraudulent and whether the adoption was made for a corrupt purpose, the observations of the Privy Council in Bhaiya Rabidat Singh v. Indar Kunwar 16 C. 556 : 16 I.A. 53 : 13 Ind. Jur. 98 : 5 Sar. P.C.J. 505; Rafique and Jackson's P.C. No. 110 : 8 Ind. Dec. (n.S.) 367 (P.C.) will be found very useful. It is unnecessary to state the facts of that case, but I would call special attention to the observations of Lord Macnaughten at page 564 Page of 16 C.--[Ed.].
83. I may conclude my discussion of this part of the case with a few remarks as to whether the widow had really debts to discharge. The only evidence on the point is that adduced by the defence. The parties took up extreme positions, the plaintiff contending that the 1st defendant had no debts to pay at all, and the defendants, that the debts were wholly those of the 1st defendant. The theory of the plaintiffs, that the brothers of the 1st defendant required the money for redeeming the Oratla estate, has completely broken down. It was suggested that the money was wanted for that purpose, but this suggestion had to be abandoned, as it was clear beyond doubt, that the money when raised was really not utilised for redeeming that estate. As there is repeated reference to Oratla in the evidence I may with advantage state a few facts regarding it. Sitaramaiya, the 1st defendant's brother, purchased Oratla subject to a mortgage. The Rani of Tuni the mortgagee filed a suit in 1910 for recovery of about 7 lakhs of rupees by sale of Oratla. Sitaramaiya pleaded that only a sum of, about rupees twenty thousand was due, but was apparently prepared, to pay about 2 lakhs of rupees and redeem the property. The Court ultimately declared that the amount due was about 5 lakhs, The suit was actually disposed of in December, 1915. The upshot was that Oratla was not redeemed and no money was required for payment in that connection. These facts are not denied and it follows from them that the money borrowed from the Raja of Venkatagiri, to whatever use it was put, was certainly not utilised for redeeming Oratla. At the time the money was raised, the mortgage suit was still pending and there is no evidence that there was any attempt to compromise it by payment of either 2 1/2 lakhs or any part of it. The tangible case put forward by the plaintiff having been thus disproved we are left to infer the truth from the only evidence on the record, that adduced by the defendants. The 1st defendant and her witnesses say that it was used for paying off her debts. The fact seems to be, that the widow was freely spending moneys on behalf of her brothers and that as she was prepared to support them and treat them with [great liberality, when moneys were borrowed it was her credit that was usually pledged, whether the party borrowing was herself or one of her brothers. The parties themselves making no distinction between the debts of the one and the debts of the other, it is impossible for the Court to apportion the amounts. How loose and inexact the ideas of the parties were on this point, will appear from the following extract from the evidence of Sitaramaiya:
That loan (from Venkatagiri) was borrowed for the purpose of discharging the 1st defendant's debts alone....
The debts which I mentioned as 1st defendant's debts are partly borrowed in her own name and partly in our names.... Whenever I borrowed moneys for her I always obtained her previous permission to do so.
84. This is said in examination-in-chief. When pressed regarding details in cross-examination, he admitted that several debts of his were paid off out of the money raised, and significantly added:
Then 1st defendant discharged most of the above debts. Most of the above documents were executed by me or my elder brother or by Venkiah; whoever happened to be present.... They were executed for her. (1st defendant's) purpose and she would pay us not only from these borrowed monies and also other funds of hers. She would give us as much of the borrowed monies as she liked.
85. The witness explains that as the 1st defendant was a woman, creditors insisted upon the signature of himself or his brothers. It is unnecessary to give further extracts from the evidence on this point. The defence thus makes no secret of the fact that some debts that were paid off were those incurred in the names of Sitaramaiya and his brothers; but it relies upon the fact that the widow chose to treat the debts as her own debts by her uniform conduct in this respect. The mortgage in favour of Venkatagiri was executed by the defendant as well as her brothers, but from this fact it is difficult to make any inference. My conclusion therefore, is, that during a long period prior to the adoption the 1st defendant came to regard her debts or those of her brothers' indiscriminately as binding upon herself and they were paid off from the moneys raised under Ex. 18 from the Raja of Venkatagiri.
III. Was Ramakrishna physically and mentally fit to take, part in the ceremony of adoption?
86. That Ramakrishna's state of mind or body did not prevent him from taking part in the adoption, there can be no doubt. Defendant witness No. 1 says that the ceremony took about half an hour, that Ramakrishna took the hands of the boy and placed them in the lands of the 1st defendant and that he was capable of performing and understanding the effect of that act. This evidence receives support from a mass of other evidence including that of very respectable and disinterested witnesses Mr. Krishnaswami Chetti, D.W. No. 9, for instance, says that the ceremony was attended by several influential men including himself. He gives very detailed evidence to show that Ramakrishna took an intelligent part in the adoption. Narasinga Rao, P.W. No. 113, (who by the way does not say he was present at the adoption) seriously suggests that Ramakrishna was unfit. The learned District Judge has recorded a finding against the plaintiff and although the lower Court's time was much taken up with this point, in this Court the plaintiff's Vakil has addressed to us only a lukewarm argument. The plaintiff sought to make out that Ramakrishna was practically dying that day and in this attempt he has completely failed. As a matter of fact, he lived for several weeks after the adoption. I must, therefore, hold that Ramakrishna was Tooth physically and mentally fit to take part in the ceremony of adoption and that the ground urged by the plaintiff in this respect fails.
87. IV. The consent of the sapindas.--I have now to consider the very important question of the consent of kinsmen to the adoption. The nearest sapindas of the 1st defendant were the plaintiff and Ramakrishna, kinsmen of equal degree, both being sons of her husband's brother, the late Raja of Pittapur. Ramakrishna assented to the adoption, whereas the plaintiff withheld his consent. The fact that the nearest kinsmen are two in number precludes the possibility of there being a majority either for or against the adoption.
88. It is contended by Mr. Ramachandra Ayyar for the defence, that in such a case the consent of one sapinda validates the adoption. In any event, he urges that the dissent of the plaintiff may be ignored, as he was influenced by selfish, corrupt and improper motives. He raises a further contention, namely, that when a man has sons, the latter equally with their father fall in the group of the nearest sapindas. Applying this rule to the facts of the present case, it is alleged that a majority of the nearest sapindas consented to the adoption as Gangadhara Rama Rao and Bajagopal the sons of Ramakrishna are among those who gave assent. Mr. Alladi Krishnaswami Ayyar for the plaintiff answers there arguments by contending, first, that when there is an even number of sapindas who are equally divided in opinion, there can, be no valid consent and in consequence no valid adoption. He secondly urges that in any event if the dissenting sapinda is not actuated by corrupt or malicious motives, his dissent becomes material and maintains that the refusal to consent on the plaintiff's part was not due to such motives.
89. It is thirdly contended by the plaintiff that the consent of the natural father, though he be one of the nearest sapindas, does not count and that accordingly Ramakrishna's consent must be ignored. The fourth point taken by him is, that the position of Ramakrishna who is an adopted son is in this respect inferior to that of the plaintiff who is an aurasa son. It is fifthly urged that the 1st defendant's application for the consent of the plaintiff was not bona fide and, therefore, bad and it is further argued that, if the application is itself bad, it is needless to go into the question of consent.
90. I shall now proceed to consider the points of fact as well as of law involved in these various propositions--
(1) Was Ramakrishna disqualified to give consent by reason of his being the natural father of the adopted boy?
91. It is now settled law that the consent of the nearest sapinda validates the adoption: There is no authority for the position that the consent of a sapinda may be discounted on the ground that he is the natural father of the boy. It is well known that the adoption of a boy from among the sapindas is generally regarded as a particularly good act. While the adoption of a sapinda's son is favoured, it cannot with reason be argued that the consent of that very sapinda must be ignored. The two positions are somewhat irreconcilable. Further, the rule which enjoins that the sapindas should be consulted, assumes that they are capable of viewing the question impartially putting aside selfish and improper considerations. In one sense, are not the nearest sapindas the very men who are incapable of forming an honest judgment? If there be no adoption, it is on them that the property of the last male holder in the ordinary course devolves. They help to defeat this valuable right of theirs by consenting to an adoption; but the law proceeds upon the footing that the sapindas can take a dispassionate view of the question and form an honest and intelligent judgment. Thus, though it is to the interests of the sapindas generally to refuse, it is assumed that they will consent, when to withhold assent will be a breach of duty. Similarly, though it is to the interests of the natural father to consent, it may be assumed that acting honestly he will refuse to consent, if the circumstances make that course of action necessary. As I have said, it is of the very essence of the rule of consent, that the sapindas are presumed to be capable of forming an honest judgment, although in the very nature of things they are interested parties. Further, if the motives are to be taken into account at all, it must be borne in mind that the statement that a father is interested in consenting to his son's adoption, is but a half truth; for, while by the adoption the son gains, the father undoubtedly loses as by his consent he destroys the possibility of himself succeeding. I cannot, therefore, accede to the proposition that the boy's natural father is as such, incapable of giving consent.
92. Having thus cleared the ground, I shall now proceed to consider whether the consent of Ramakrishna may be discounted on any special grounds. I have already discussed the manner in which Ramakrishna approached the question of adoption. The evidence of Mr. Krishnaswamy Chetty on this point I have set forth. Ramakrishna felt that the 1st defendant belonged to a faction opposed to him and did not at first look with favour on the proposal. The Maharajah of Venkatagiri, his brother, whose advice he was wont to treat with great deference, was from the start in favour of the adoption. Ramakrishna was willing to abide by his brother's advice and finally agreed to give away his boy. That he deeply weighed the pros and cons, appears from his conduct. After deliberation, he went up to Mr. Krishnaswamy Chetty and formally informed him that he had made up his mind and was willing and requested him to inform Venkatagiri accordingly. It is very probable, as spoken to by some witnesses, that it was on account of this prejudice of Ramakrishna, that Venkatagiri suggested the alliance to which reference has been made. It was a shrewd and practical suggestion, that if the 2nd defendant married Seetharamaiya's daughter, the alliance would produce harmonious relations between the adopted boy and the 1st defendant's relations. The 1st defendant also speaks to this hesitation on the part of Ramakrishna. He did not easily consent (to use her own words) 'as I was living in Pittapur and the boy would, be in the midst of enemies.' She proceeds to say that when she assured him of the boy's safety he agreed. It is noteworthy that even Narasinga Rao has had to refer to this initial reluctance on the part of Ramakrishna. In this connection, it must not be lost sight of, that when Ramakrishna gave his consent on the 20th of January, the 1st defendant was still at Undoor and there were no terms in contemplation. In discussing the motives of Ramakrishna, this fact becomes very material as it shows that he could not have been influenced by any extraneous considerations. It is unnecessary to pursue this matter further. It is proved beyond doubt that Ramakrishna did not start with a bias in favour of the adoption and that whatever may be the law on the point, he was personally not disqualified to be consulted or to give advice.
93. Then there is the fact that Ramskrishna had several sons and that by consenting to the adoption of one of them while he may probably be conferring an advantage on that particular son, his act operates to the detriment of his other sons, as it destroys their reversionary right of succession,
94. It is well to bear in mind in this connection that when Ramakrishna gave his consent, he was conscious of the fact that he occupied this dual position and framed his reply accordingly. In Ex. 15-A, the letter of consent, he states first that he consents to the adoption and secondly he states that he consents to his son being adopted. I, therefore, reject the plaintiff's contention on this point.
(2) Is the position of an aurasa son superior in this respect to that of an adopted son?
95. For insisting upon the consent of the sapindas generally, various reasons have been suggested by the Judicial Committee; but the reason for requiring the consent of the nearest among the sapindas is, that it is their reversionary interest that is affected by the adoption. The more recent decisions of the Privy Council have placed this matter beyond doubt: see Kesar Singh v. Secretary of State for India : AIR1926Mad881 ] In regard to lineal succession, the right of an aurasa son is undoubtedly greater than that of an adopted son, but in regard to their reversionary right they stand upon an equal footing, as when the succession opens upon the widow's death, they take equally. As the sapindas right to be consulted depends upon the measure of their proprietary (or quasi-proprietary) right, it stands to reason that in regard to consenting to an adoption, the position of the aurasa son and the adopted son must be alike, their rights to property being equal. I cannot, therefore, accept the contention of the plaintiff's learned Vakil on this point.
(3) When a man has sons, do the latter equally with their father fall in the group of the nearest sapindas?
96. Mr. Ramachandra Ayyar for the defence contends that, although as a general rule the nearer sapinda excludes the more remote, an exception must be made, in the case of a father and his sons, the term sons including the grandsons. I do not think that on principle this position is sound. If the consent derives its force from a member's position in the family, the father decidedly occupies a place relatively of greater importance than the son and the latter must on that footing yield precedence to the father. If, again, the question has to be decided with reference to rights of property, the father succeeds as reversioner to the exclusion of the son--which is inconsistent with the theory of the father and the son falling alike in the same group. To test the correctness of Mr. Ramachandra Ayyar's position, let us take a concrete case. If A, B and C who are brothers happen to be the nearest sapindas, A having four sons, his branch has, on this theory, 5 votes as against the one vote of B and the one vote of C, the two latter having no sons. This illustrates the unsoundness of the position as such a result could not have been intended. The learned Vakil relies upon certain passages in the judgments of the Judicial Committee, where their Lordships, without having their attention called to this point, and without adverting to it, have casually, while describing a group of sapindas, included in that group, the father as well as the sons: see Veerabasavaraju Pantulu v. Balasurya Parasada Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R. (P.C.) 18 : 45 I.A. 265 and Kristnayya v. Lakshmi Pathi 56 Ind. Cas. 391 : 39 M.L.J. 70 : 18 A.L.J. 601 : (1920) M.W.N. 385 : 24 C.W.N. 905 : 28 M.L.T. 70 : 43 M. 650 : 12 L.W. 625 : 47 I.A. 99 It is not, in my opinion, right to infer from these passages that their Lordships intended to lay down a rule which runs counter to the principle repeatedly recognised, by them. I must, therefore, reject the contention on this head urged by the defence,
(4) Was the plaintiff justified in refusing to consent?
97. The plaintiff in his reply Ex. EE-11, dated the 11th February, 1914, has very fully set forth his reasons for withholding consent. It is a carefully prepared document, drafted under legal advice and the reasons mentioned in it must be closely examined. They are:
(a) The 1st defendant's object in making the adoption was to spite the plaintiff as he refused pecuniary help.
I have already discussed this point and shown that there is no substance in this complaint.
(6) The plaintiff next refers to the loss that may be caused to him. He admits in his cross-examination that the loss adverted to is the prejudice to his reversionary right. He also admits that the estrangement between himself and the 1st defendant dates from the adoption. That the plaintiff regarded the 1st defendant as his enemy on account of this adoption, there can be no doubt. He says so expressly in his evidence and we have also the fact that, immediately after the adoption, he caused three criminal prosecutions to be filed against the 1st defendant and her brothers, which, however, ended favourably to them. There is not a shadow of justification for suggesting that the motive of the 1st defendant in adopting, was to cause loss to the plaintiff. The refusal to consent, because the reversionary interest of the sapinda will be prejudiced, can in no circumstances be justified.
(c) The fact that the boy is the son of Ramakrishna, the plaintiff's 'long standing enemy' is urged as the next reason.
The plaintiff here betrays that he is actuated a selfish motive. The rule that a sapinda must be consulted, rests on the theory, that he is able to subordinate his own interest and bring to bear a calm and reasoned judgment. His enmity to Ramakrishna is a matter personal to himself and does not affect the widow whose interests he is supposed to be safeguarding. In his evidence, the plaintiff further amplifies this ground of objection. He asserts that he objected to the adoption as the boy belonged to a family which denied his legitimacy. In the first place, no blame in any event attached to the boy; for, he had never denied the plaintiff's status. Further, the 2nd defendant, being the plaintiff's brother's son, was already a member of the plaintiff's family. There is no question of introducing a stranger and the objection is, therefore, wholly futile. As a fact, the adoption had the effect of removing the 2nd defendant one degree further from the plaintiff. As Mr. Ramachandra Ayyar pointed out in his powerful argument, the plaintiff seemed to say 'I am concerned only with my legitimacy and nothing else matters to me.' The very idea that the adoption was to be of one, whom he considered to be Ms enemy was repugnant to him and his mind became clouded and he could no longer be trusted to arrive at a proper decision. The ground urged is thus frivolous and shows that the plaintiff having first made up his mind to oppose the adoption, was seeking reasons to justify his refusal.
(d) The plaintiff next complains that the 1st defendant did not care to personally interview him. This is again a palpably unsound reason. The 1st defendant wrote to the plaintiff on the 2nd of February asking for consent. The wording of the letter is unobjectionable and the plaintiff admits this in his deposition. As no reply was received the 1st defendant sent a reminder on the 7th of February. Was there a duty cast upon the widow to personally approach the plaintiff? There is no doubt that the 1st defendant was aware, as the plaintiff was, that he would treat with disfavour any proposal to adopt. Having regard to the plaintiff's position, the widow might well be reluctant to meet him personally and provoke him to anger. There is nothing to compel a widow to put herself in such a position. On the contrary, if the plaintiff believed that there was any matter that could be cleared up by a personal discussion, it was open to him to suggest an interview to the 1st defendant. This reason is of a piece with the reasons already considered and must be rejected as improper.
(e) It is next alleged that Ramakrishna's consent was purchased for consideration. That this is an entirely unfounded allegation, the plaintiff has had to admit. This is indicative of the mentality of the plaintiff. In his anxiety to find reasons against the adoption, he went the length of making aspersions against Ramakrishna whose integrity in this connexion has not been impeached. The plaintiff says that he heard that Ramakrishna received a few thousand rupees and gave consent and admits that this information has turned out to be wrong. I am afraid that little credit is due to the plaintiff even for this admission. His case in the plaint was, that Ramakrisina's state of mind prevented him from comprehending anything and that he was practically unconscious during this period. It would militate against that case to suggest that Ramakrishna received a bribe. Finding himself in this awkward position, the plaintiff gave, up the charge of bribery and pressed the point that Ramakrishna was unconscious. This reason is thus admittedly unsound.
(f) The next reason alleged by the plaintiff is, that the 1st defendant entered into certain pre-adoption arrangements which had the effect of depriving the adopted son of a portion of the property. As Mr. Ramachandra Ayyar has pointed out, the solicitude of the plaintiff for the and defendant to whose adoption on personal grounds he was opposed, seems somewhat paradoxical. However this may be, I have already discussed and shown that the widow was not influenced by any corrupt or capricious motives. By the 5th of February or so, it was decided that there were to be two arrangements which were afterwards embodied in Exs. 17 and 17-A. As the plaintiff wrote on the 11th there can be no doubt that the arrangements referred to in his letter are these two arrangements. The first thing that the plaintiff did on receiving the widow's application, was to depute men to go about and collect facto regarding the proposed adoption. On the 1st defendant's side, there was no secrecy maintained and the stamp papers were purchased on the 6th of February for the settlement and maintenance deeds. If the desire of the plaintiff was to decide honestly, he might have scrutinized the real nature of these arrangements. Ho would have been well within his rights to ask the 1st defendant for particulars and insist upon obtaining fuller information. These steps he failed to take, and as things have turned out the Court has had to decide the true character of the transaction, and as I have already said, it cannot be invalidated by reason of these arrangements.
I do not propose to deal in greater detail with the evidence of the plaintiff on this part of the case which I cannot accept as true in certain respects, as, for instance, where he says that he had heard at that time of the loan by Venkatagiri.
(g) A further reason alleged was, that the 1st defendant applied for his consent 'merely for the sake of formality' and not with a desire to obtain his consent. This allegation was sought to be made, good by showing that the adoption was first fixed for the 8th of February, then for the 13th and finally for the 15th. It is asked, if the 1st defendant really sought the mind of the plaintiff, how could the adoption have been fixed for the 8th, before the plaintiff's reply was received? The answer is two-fold. There is nothing to show that the dates were not tentatively fixed, and secondly the dates might be fixed in the expectation that a reply would be received in the meantime. This objection is, in my opinion, also bad.
(h) The next reason refers [to certain agreements between the late Rajah and the 1st defendant's husband. It is alleged that they had the effect of forbidding an adoption. This requires separate treatment and all I need say at present is, that, in my opinion, this objection is also bad.
98. These are the reasons mentioned in Ex. EE-11 and urged at the trial. I have come to the conclusion that the plaintiff approached the question with a biassed mind and rendered himself incapable to be a proper judge of the transaction. I have come to the further conclusion that he was influenced by improper and selfish motives in refusing consent, and that the reasons on which he seeks to justify his refusal are utterly unsound.
(5) Is the application to the plaintiff for consent itself bad?
99. In her letters asking for consent, the 1st defendant treated the plaintiff with deference. Indeed, the plaintiff himself found nothing objectionable either in their tone or their contents. This is expressly admitted by him in his deposition but at the trial it was discovered by his legal advisers that the plaintiff was not described in the letters as her sapinda--a circumstance which is quite immaterial. Then it is argued by Mr. S. Srinivasa Ayyangar, for the plaintiff that in this suit the 1st defendant denied the plaintiff's status as a sapinda. This again seems to me to have no bearing on the question. When the plaintiff attacked the adoption made by the 1st defendant she was justified in protecting herself by urging every ground against him and the question of his parentage was, at any rate, not free from doubt, the Court on the previous occasion having given its decision against him. The denial of the plaintiff's status having thus been made one of the main planks in the defence, it was too much to expect the 1st defendant and her witnesses to admit in cross-examination, that the plaintiff was a sapinda and when his consent was sought for, he was regarded as such. No weight can, therefore, be attached to the statements made in this respect at the trial. Moreover, I am of the opinion that, when it is shown that the widow has sought the advice of her kinsmen, the Court must not embark upon an enquiry as to what the motives of the widow are in seeking consent. A duty is cast upon the widow to apply for consent and, when she performs that duty, her act cannot be questioned on the ground that her motives were bad. The Privy Council has held that, even when it is known that a sapinda if asked will refuse, his consent must be sought. This by analogy shows that it is immaterial to enquire whether the widow intended to abide by the advice, when given, or not. In any ev'nt, on the facts, I am satisfied that there is no force in the argument that the 1st defendant treated the application to the plaintiff as a mere formality.
(6) Is the consent sufficient?
100. I have now reached that stage in the discussion, when I may conveniently deal with the question of sufficiency of the consent, measured by quantity. The plaintiff as well as Ramakrishna are, as I have said, sapindas of the same degree, both being the sons of the late Rajah, the brother in law (husband's brother) of the adopting widow. Ramakrishna has given his consent, whereas the plaintiff has not. The question is, is this consent sufficient? The foundation of the doctrine of consent is, that it affords evidence '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:' see Ramnad case Collector of Madura v. Moottoo Ramalinga Sathupatty 12 M.I.A. 397.: 10 W.R.P.C. 17 : 1 B.L.R.P.C. l : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. (n.s.) 1 : 3 Mad. Jur. 298 When consent is efficacious to validate an adoption, the Court has no direct concern with the motives of the widow. If the Court finds the consent valid, it leaves alone the question of the widow's motives. It is for the kinsmen who are called on to grant consent, to examine the motives and where it is found that effective consent has been granted, the Court will treat that as the decision of a domestic tribunal and will not trouble to canvass the propriety of the consent. Now in regard to the sufficiency of the consent, decisions of the Privy Council have laid down certain tests by which that point has to be determined. The case has been argued on the footing that the plaintiff and Ramakrishna are the separated kinsmen of the widow's deceased husband. It is now settled law that the authorization requisite to the validity of an adoption, is that of the nearest sapindas. It has also been held that it is the duty of the widow to consult every member of this body, and if the widow fails to consult one of them she cannot justify her omission by showing that she did not consult because she knew that if consulted he would refuse. In this case, the nearest sapindas were two in number and she consulted them both. The Privy Council have also said that if a majority of the kinsmen assent and one refuses, his objection may be discounted: Veerabasavarjau Pantulu v. Balasurya Prasada Rai 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R. 18 : 45 I.A. 265 The rule must on principle be extended to where the minority consists of more than one Kesar Singh v. Secretary of State for India : AIR1926Mad881 . The word 'majority' in this passage has been explained by the Privy Council as being a 'substantial majority.' Kristnayya v. Lakshmipathi 56 Ind. Cas. 391 : 39 M.L.J. 70 : 18 A.L.J. 601: (1920) M.W.N. 385 : 24 C.W.N. 905 : 28 M.L.T. 70 : 43 M. 650 : 12 L.W. 625 : 47 I.A. 99 Now if the substantial majority assent and the minority refuse, the objection of the minority may be disregarded. This I take to be the effect of the decisions of the Privy Council. In such a case--as in the case where the kinsmen unanimously assent--the sapindas' consent is irrebuttable proof of the propriety of the adoption. This rule, of course, is subject to a well known exception that the consent should not have been purchased. Ramnad case Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. l : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec.1 : 3 Mad. Jur. 298 and Ganesa Ratnamaiyar v. Gopala Ratnamaiyar 7 I.A. 173 : 2 M 270 : 4 Sar. P.C.J. 149 : 3 Suth. P.C.J. 740 : 4 Ind. Jur. 360 : 1 Ind. Dec. 459 (P.C.). It is the kinsmen that are adversely affected by the adoption and when they are satisfied and accord consent, the Court does not take upon itself to enquire into the motive for the adoption or its purpose or object. The decisions of the Privy Council also establish, that if a near sapinda is incapable of forming a judgment, as in the case of a minor or a lunatic, his consent is not necessary. Similarly when it is proved that he is actuated by corrupt or malicious motives his dissent may be disregarded. Their Lordships also observe that the consent required is that of a majority of those kinsmen 'who are capable of forming an intelligent and honest judgment.' I have said that if a substantial majority consent, the dissent of the minority may be ignored. The question then arises, what is to be the position where the assent is that of a bare (as distinguished from substantial) majority? Then again, if the number of the nearest sapindas is even, what is to happen if they are equally divided? The Privy Council has so far not had any occasion to make a pronouncement on these matters. But from the principles laid down by that tribunal and from the reason of the thing, it seems to follow that the Court will in such cases be called on to decide the propriety or the bona fides of the dissent. The assenting kinsmen are not required to justify their assent; for the adoption is a meritorious act and it is presumed that the assent was properly given. It must be borne in mind that I am now dealing with cases where either half the number of the kinsmen or a bare majority of them have granted consent. If it is proved in such cases that the dissenting kinsmen were actuated by corrupt or malicious motives their dissent must be disregarded; but the difference between there being an unanimous vote or a vote of a substantial majority and the cases under consideration, is, that in the former the dissent is summarily ignored without the Court going into the question of the propriety or otherwise of the dissent, whereas in the second set of cases the Court has to find before discarding the dissent, that it was actuated by corrupt or malicious motives. Although here again the Court has no concern with the motives of the widow, they indirectly come into notice when it has to judge of the bona fides of the dissent--for, as I have pointed out, it is within the province of the kinsmen to go into the widow's motives in deciding whether they shall give ox withhold consent.
101. In the present case, the sapindas being equally divided in opinion, on the principle I have stated, it becomes necessary to examine whether the dissenting sapinda was actuated by corrupt or malicious motives. In discussing the evidence I have shown that the plaintiff refused from indirect motives and on personal grounds.
102. In Parasara Bhattar v. Rangaraja Bhattar 2 M. 202 : 4 Ind. Jur. 393 : 1 Ind. Dec. 412 where there were two sapindas standing in the same degree of relationship, one of whom assented and the other refused, Turner and Innes, JJ., upheld the adoption on the ground that the refusal was due to improper motives. This is a very important case, because on my finding it is on all fours with the present. The dissenting sapinda in that case is said to have 'refused' from interested or improper motives or without a fair exercise of discretion.
103. In this connection I may also refer to Subrahmanyam v. Venkamma 26 M. 627 : 13 M.L.J. 239 affirmed by the Privy Council in Venkamma v. Subramaniam 30 M. 50 : 34 I.A. 22 : 9 Bom. L.R. 89 : 4 A.L.J. 150 : 5 Cri.L.J. 140 : 11 C.W.N. 345 : 17 M.L.J. 114 : 2 M.L.T. 91. There were two sapindas of equal degree, one of whom gave assent to the adoption and the other was not asked. Benson and Bhashyam Ayyangar, JJ., held the adoption invalid and made the following observations which are relevant to the present purpose:
If she had applied to him for his assent and he had withheld the same, with or without assigning reasons and she had nevertheless made the adoption relying on the assent of the 3rd defendant alone, we should have been in a position to decide whether the plaintiff had withheld his assent properly or improperly and capriciously.
104. This passage implies that if the sapinda had been asked and refused, the Court would have considered his reasons and if they were improper ignored his dissent. It-has been contended by Mr. Krishnaswami Aiyyar that the refusal must be due to corrupt or malicious motives: see Kristnayya v. Lakshmipathi 56 Ind. Cas. 391 : 39 M.L.J. 70 : 18 A.L.J. 601 : (1920) M.W.N. 385 : 24 C.W.N. 905 : 28 M.L.T. 70 : 43 M. 650 : 12 L.W. 625 : 47 I.A. 99. The Privy Council in using those words did not mean to exclude motives such as those described in Parasara Bhattar v. Rangaraja Bhattar 2 M. 202 : 4 Ind. Jur. 393 : 1 Ind. Dec. 412. In Nagarampalli Kanesam v. Nagarampalli Batchamma 24 Ind. Cas. 257 : (1914) M.W.N. 620 : 1 L.W. 511. Wallis and Sadasiva Ayyar, JJ., held that the refusal was bad because it was unreasonable. In Venkatapathi Somayajulu v. Punnamma 28 Ind. Cas. 373 : (1915) M.W.N. 236 : 17 M.L.T. 218 : 2 L.W. 284 it was held by Wallis, C.J., and Hannay, J., that where a sapinda refused from grounds personal to himself the refusal could be ignored. They observed that a reversioner 'must act with a deliberate consideration of what is for the benefit of the family.' In Venkatarama Raju v. Bapamma : AIR1915Mad759 Sankaran Nair and Spencer, JJ., held that a sapinda should have due regard 'for the benefit of the family especially that part of it which the widow represents.' Judged by these various tests, the plaintiff's refusal was bad and must be discarded.
105. In the view I have taken, it is unnecessary to discuss the effect of the consent of the remoter kinsmen obtained by the 1st defendant.
V. Undertaking not to adopt and prohibition to adopt.
106. Mr. Alladi Krishnaswami Ayyar has raised the contention that the 1st defendant is bound by the covenant on the part of her husband contained in Exs. O and O (1), not to make an adoption, but, beyond merely raising the point, has not supported it by any argument. His contention was overruled by the lower Court and, as the learned Vakil has not argued the point, I do not propose to discuss it and I must hold that this objection fails.
107. It is next contended that in any event, from the covenant, it may be implied that Venkata Rao prohibited his widow from adopting. Whether the husband prohibited the adoption, is a question of fact. When the prohibition is not express, it must be shown by clear and unequivocal evidence, that the conduct of the husband leads to an irresistible inference that he desired his widow not to make an adoption. If the facts are consistent with the opposite hypothesis, the Court will be very slow to infer that the husband forbade the adoption, an act necessary to the salvation of his own soul. In Malgauda Paragowda Patil v. Babaji Dattu Bhakare 17 Ind. Cas. 746 : 37B. 107 : 14 Bom. L.R. 1121 a prohibition was inferred from clear dispositions made in regard to property, dispositions inconsistent with an intention that an adoption should be made. The learned Judges observed: 'As it stands the Will makes a complete disposition of all the property in favour of the daughters. There is no property left upon which an adoption take effect.... Not only was there a completel bequest of the whole estate to the daughters, but the widow was in terms prohibited from disposing of the property to any one except the daughters.'
108. In this case, there is no evidence that Venkata Rao intended not to make an adoption notwithstanding his undertaking', much less, can an intention be reasonably imputed to him to prohibit an adoption by his widow subsequent to his death. It is worthy of note that the late Raja, the father, of the plaintiff, did not consider himself bound by his promise not to adopt (for the undertaking is mutual) and that he was the first to infringe this covenant, for he adopted Ramakrishna long before the 1st defendant made the adoption in question. In my opinion this ground also fails.
109. It is unnecessary to deal separately with the arguments of the District Judge. I think I have sufficiently indicated my reasons for not accepting them. I may observe that the view of the lower Court is not entitled in this case to that weight which we should generally attach to the opinion of a Court of first instance, for some of the most important witnesses were examined on commission (D.W. No. 9, Krishnaswami Chetty and P.W. No. 113, Narasinga Rao), and even the 1st defendant whose evidence was taken by the Judge, was behind a purdah when she was examined. The lower Court did not thus have an opportunity of seeing the witnesses or noting their demeanour. I, therefore, hold in regard to the issue relating to the adoption, that the plaintiff fails. This would be sufficient to dispose of the appeal as on this finding the appeal must be allowed, but I shall consider also the other issue in the case as it has been fully argued before us. That issue raises the question of the plaintiff's parentage. As I have said both his paternal and maternal origin has been disputed and the points to be decided, therefore, are, whether the plaintiff was begotten by the late Raja and whether Mangayamma, his alleged mother, gave birth to him.
110. On behalf of the defendants an application was made to admit evidence of witnesses who were examined in the previous suit. At the conclusion of the arguments on that point we gave a ruling that that evidence was inadmissible and intimated that we would stats reasons in the final judgment in the case. The following order, I then prepared but did not read in Court and is now embodied in this judgment:
111. Order on C.M.P. No. 554 of 1921 (to admit documents) in Appeal No. 62 of 1921.
112. The question raised is in regard to the admissibility of certain evidence under Section 33 of the Evidence Act. The facts so far as they have a bearing on the present application, may be briefly set forth. Before this suit, there was an earlier action and the defendants ask that certain depositions of witnesses in that suit, should be received as evidence in the present suit. Gangadhara Rama Rao, the late Raja of Pittapur, adopted Ramakrishna in 1873, and died in 1890 leaving a Will. In 1885 a son was alleged to have born to him who is the present Raja of Pittapur. After the late Raja's death, Ramakrishna instituted the previous suit, O.S. No. 6 of 1891, against the present Raja and the Court of Wards claiming possession of the properties of the late Raja, which after his death, had been taken possession of by the Court of Wards. The present Raja relied upon his being the son of the late Raja and also upon a Will made in his favour. The case ultimately went up to the Privy Council and it was decided that the present Raja took the properties under the Will in question and the other point regarding his status was left undecided.
113. Now let us turn to the facts of the present case. The late Raja had a younger brother named Venkata Rao to whom the former granted the Gollaprolu Estate out of the Pittapur zemindari, for his maintenance subject to terms with which we are not now concerned. Venkata Rao died in 1871 leaving the 1st defendant his widow surviving him. In 1914 the 1st defendant adopted the 2nd defendant, the natural son of Ramakrishna, and the present Raja has filed this suit for the setting aside of the 2nd defendant's adoption claiming to be the presumptive reversionary heir of Venkata Rao.
114. The plaintiff's title depends upon his being the aurasa son of the late Raja of Pittapur and his status is again questioned in this suit. The plaintiff is a common party to both the actions, but to the first suit Ramakrishna was a party and the 2nd defendant was not. In the present suit Kamakrishna is not a party. In regard to the status of the plaintiff, several witnesses who were examined in the earlier litigation are now dead and the defendants seek to put in, the depositions in the first suit of those witnesses, as evidence under a. S3, in the present suit. The learned Subordinate Judge has held that they cannot be treated as evidence in this case and the correctness of this order is impeached by the defendants.
115. Section 33 says that evidence given by a witness in a judicial proceeding, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or when his presence cannot be obtained without unreasonable delay or expense. Then the section proceeds to say when such evidence is admissible. The conditions are stated in the three provisos to the section:
(1) Provided that the proceeding was between the same parties or their representatives-in-interest;
(2) Provided that the adverse party in the first proceeding had the right and opportunity to cross-examine and
(3) Provided that the questions in issue were substantially the same in the first as in the second proceedings.
116. The wording of the first proviso has given rise to some difficulty: What does the expression 'representatives-in-interest' mean? A person who derives his title through, or claims under another, is the representative-in-interest of that other. For example, B, the purchaser of an estate from A, is A's representative-in- interest, but A is not the representative of B. Similarly a son who claims a sum of money from his father is the latter's respresentative and in respect of that sum the father is not the representative of his son. This is the sense in which the words 'representative-in-interest' are invariably used, and it is in this very sense these words are used in an earlier section, Section 21 of the Evidence Act itself. Under that section, admissions may be proved as against the person who makes them or his representative-in-interest. The latter portion means that the successor is bound by the statements of his predecessor-in-interest. Under Section 33, the question, therefore, resolves itself into this, namely, is the party in the second proceeding the 'representative-in-interest' of the party in the first? In other words, was the party in the first the predecessor-in-interest of the party in the second? In the proviso in question, the two proceedings are not separately mentioned and the difficulty is due to this circumstance and also to some extent to the use of the word 'was' instead of the word 'is.' Although the proviso might have been more explicitly worded, there can be no reasonable doubt about its meaning. The English rule ia succinctly stated thus in Taylor on Evidence:
Consequently, the evidence taken on the first trial is admissible on a second trial if, although the two trials be not between the same parties, the second trial is between persons who legally represent the former parties, or are their privies in estate' (11th Edition Section 467). The second trial must, therefore, be between 'persons who legally represent the former parties or are their privies in estate'--in the language of the Indian Law, between persons who are 'representatives-in-interest' of the former parties. In Printing Telegraph and Construction Co. of the Agence Hevas v. Drucker (1891) 2 Q.B. 801 : 61 L.J.Q.B. 58 : 9 R. 677 : 71 L.T. 172 : 42 W.R. 674 A.L. Smith, L J. cites the following observations of Lord Cottenham in Humphreys v. Pensam (1836) 10 E.R. 498 : 1 My. & Or. 582:
Depositions can only be read for or against those who are parties or privies to the suit in which the depositions were taken.
117. The question to be asked is: are the parties to the second suit 'privies to the suit in which the depositions were taken,' that is, the first suit?
118. The rule that the testimony given in respect of a fact in a suit is admissible to prove the same point in a later action between the same parties or their privies, has been extended to cases where the interests of the parties in the second action were represented in the earlier one to which they ware not parties, as for instance, in the case of legatees or tenants-in-common. See the judgment of Kay, L.J., in Printing Telegraph and Construction Co. of the Agence Hevas v. Drucker (1891) 2 Q.B. 801 : 61 L.J.Q.B. 58 : 9 R. 677 : 71 L.T. 172 : 42 W.R. 674. In this passage, the word 'represented' must be distinguished from the expression 'representative in-interest.' The party in the earlier proceeding 'represented' the interests of the party in the subsequent proceeding. In other words, the party in the second proceeding is a 'representative-in-interest' of the party in the first proceeding. It makes very little difference how the point is put but to say that the party in the first proceeding is the representative-in-interest of the party in the second proceeding, is to put the point upside down. In regard to the extension of the rule referred to by Kay, L.J., it may be pointed out that it- is analogous to the rule contained in Explanation VI to Section 11 of the Civil Procedure Code. That section which deals with res judicata says in Explanation VI, that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall be deemed to claim under the person so litigating. Under this explanation, the parties to the second proceeding are taken as the representatives-in-interest of the parties in the first suit. As already observed, this is tantamount to saying that the parties in the earlier suit 'represented' the interests of the parties in the second suit. Llanover v. Homfray (1882) 19 Ch. D. 224 illustrates the application of this extended rule. In the first action some customary tenants of a Manor filed their bill on behalf of themselves and all other customary tenants to establish their right to work minerals under their tenements. A second suit of the same nature was filed by customary tenants who did not derive title under any of the plaintiffs in the first suit. It was held by the Court of Appeal that the evidence taken in the former suit was admissible on behalf of the plaintiffs in the later suit, the ground being that there was sufficient privity between the plaintiff in the first and second actions to make the evidence admissible The cases cited by Mr. Venkataramana Rao, where a Hindu widow was held to have represented the interests of the reversioners: see Risal Singh v. Balwant Singh 48 Ind. Cas. 553 : 40 A. 593 : 28 CRI.L.J. 519 : 24 M.L.T. 361 : 9 L.W. 52 : 23 C.W.N. 326 : (1919) M.W.N. 155 : 1919 36 M.L.J. 597 : 21 Bom. L.R. 511 : 45 I.A. 168 and Vaithialinga Mudaliar v. Srirangath Anni axe analogous to those to which the rule has been extended as observed by Kay, L.J. or again to those falling within Explanation VI to Section 11. The same remark applies also to the other set of cases cited by the learned Vakil of which Chiruvolu Punnamma v. Chiruvolu Perrazu 29 M. 390 : 1 M.L.T. 183 : 1 6 M.L.J. 307 may be taken as an example] where presumptive reversioners were held to represent in suits the interests of the whole body of reversioners including those that are more remote.
119. Is the present 2nd defendant the representative-in-interest of Ramakrishna? That is the question to be decided. To determine this, we must examine the title to which the previous litigation related. Without having regard to the nature of the action, it is impossible to say whether a certain person is another's 'representative-in-interest,' for, that very expression connotes and implies that the representation must be with reference to a particular title. It is a well-known legal term and one cannot conceive of a representative-in-interest in the abstract. Let us then look at the scope of the previous suit. On the death of Gangadhara Rama Rao, the late Rajah of Pittapur, Ramakrishna claimed the zemindari of Pittapur on the ground that the plaintiff was not the late Rajah's aurasa son but that he was himself the Rajah's adopted son. Ramakrishna was obviously litigating a title in respect of Pittapur. Can it be said that he was litigating also a title in respect of Gollaprolu? It is necessary to determine what the title is that he was then litigating, for upon that depends the question as to who his 'representatives-in-interest' are, for the present purpose. That those that may claim Pittapur on the title then in question are his representatives-in-interest, admits of no doubt. We are not now concerned, however, with the title to the Pittapur zemindari, but Mr. Venkataramana Rao, in his able argument contends that the title then under dispute must constructively be taken as one relating not only to Pittapur but also to Gollaprolu, as the plaintiff's right to both the estates depended upon his being the son of the late Rajah. If this argument were pushed to its logical extreme, what would be the result? Let us suppose that at the time of the previous suit, there were half a dozen widows like the 1st defendant each in possession of some property, to which the zemindar of Pittapur was the reversionary heir. It would follow from this contention as a necessary and logical consequence, that Ramakrishna must be constructively deemed to have been litigating, in addition to the actual title then in controversy, also titles in the capacity of a possible reversionary heir, in regard to these various properties. In this view, the several distinct groups of reversioners interested in the various items of property, would be the 'representatives-in-interest' of Ramakrishna. That is to say, if the reversion fell in and there was litigation, any reversioner falling in any of these groups would, according to this contention, be a representative of Ramakrishna. This illustration shows the limit to which Mr. Venkataramana Rao's argument can be pushed. The rule in Section 33 applies mutually; if these various reversioners can invoke its aid, the plaintiff can also appeal to it in proceedings between himself and them. It is unlikely that these consequences were intended. The contention that Ramakrishna was contesting a title in regard to Gollaprolu thus fails.
120. Much argument was directed to the point whether in regard to the Pittapur estate Ramakrishna represented the 2nd defendant. It was contended by the appellant's learned Vakil that the late Raja Gangadhara Rama Rao and Venkata Rao, the 1st defendant's husband, were undivided quoad Pittapur and that, therefore, Ramakrishna was in a position to, and did represent, the 2nd defendant whether his adoption to Venkata Rao is or is not upheld. It was further contended that should it beheld that the brothers (the late Rajah and Venkata Rao) were divided quoad Pittapur and that the 2nd defendant was validly adopted, even then Ramakrishna represented all the possible heirs in the line of succession to the zemindari of Pittapur including the 2nd defendant. The points of fact as well as of law involved in these propositions were controverted by Mr. 8. Srinivasa Ayyangar for the respondents. As the title to which we must have regard is the one relating to Gollaprolu and not to Pittapur, it is unnecessary to consider either the contentions set forth above or the cases on impartible estates cited at the Bar.
121. The depositions in the previous suit were rightly rejected and the order of the lower Court on this point must be confirmed.
122. I shall now proceed to consider the second issue. In 1861, the late Raja who was then about seventeen years old married Mangayamma who was slightly younger than himself. He married a second wife in 1865 and a third wife, Subbayamma (known as Nuzvid Rani) in 1871. In 1873, he adopted Ramakrishna, a son of the late Raja of Venkatagiri, and I may in passing note that he was only 29 years old when he made this adoption. There seems to have been some misunderstanding in 1876 between the Raja and Mangayamma, who, in consequence, was permitted to go to her parents' house at Tiruvur. The Raja married in 1879 a fourth wife and either owing to this or some other fact Mangayamma returned to Pittapur in October 1880. Then the next event is one of great importance and it happened in April 1881. A ceremony known as seemantham (generally performed when a lady is pregnant) was celebrated in that month by the Raja at Samalkot and this, of course, was a public announcement that Mangayamma was pregnant. After the seemantham, she left again for Tiruvur. It is common ground that nothing came of this pregnancy, but the incidents that happened at Tiruvur have some bearing upon the issue to be decided. For the plaintiff it is alleged that Mangayamma's pregnancy was what is known as pseudocyesis or spurious pregnancy, which assumes that she sincerely believed herself to be pregnant. Though it was suggested for the defence that it was not a case of spurious pregnancy but only simulated pregnancy, it must be said that this is, at best, a theory, and is not supported by evidence. Mangayamma is alleged to have been in this condition for about three years. It is stated by some of the plaintiff's witnesses that she had labour pains at regular intervals at the end of 9, 18, 27 and 36 months. It is not disputed that this is a phenomenon unknown to medical science, and whatever may be the truth regarding this alleged pregnancy, this part of the story must be rejected. So far as the Raja was concerned, from the reports that he heard, he seems to have believed that his wife was pregnant and would bring forth a child. In January 1881 he writes to Mr. Grant that his wife's pregnancy had reached the fourth month and in July 1881 that the pregnancy was then nine months old. He continues to write in the same strain. In July, he repeatedly says that the childbirth is expected in a few weeks, and in August that it is imminent. Strangely enough, in October, ho says that the confinement is likely to take place in a month and we find again that, still later, that is, in November, he informs Mr. Grant that his wife has not yet been delivered of a child. What is still more remarkable is, he writes as late as the 5th February 1883 to Mr. Wedderburn telling him that he has received news that his wife was in labour pains. The defence strongly contends that Mangayamma imposed upon her husband and got him to believe that she was really pregnant. It is said that her object in so doing was to pave the way for successfully introducing a spurious child. On the evidence, I must come to the conclusion that Mangayamma's pregnancy was spurious pregnancy although I am not prepared to believe that that condition lasted for 36 months and that there were labour pains at regular intervals. In this connection I must notice that it was a part of the defendant's case that Mangayamma made attempts to introduce a false child during this period of her stay at Tiruvur. There was not sufficient evidence at this trial to make out this plea and I must, therefore, find against it.
123. I have now so far narrated the events that happened at Tiruvur. Mangayamma left that place in August 1884 and, after a short sojourn at Rajahmundry, came to Pittapur in November of the same year. It is difficult to say why she returned to her husband's place. But one reason suggested is, that the late Raja married successively in May and June 1884 three wives (who are known as Chitrada Rani, Veeravaram Rani and Bobbili Rani) and that Mangayamma became afraid that if she did not return, she would lose all hold on her husband. However this may be, the fact remains that she did return to Pittapur and live under the same roof as her husband. On the 5th of October 1885, at about 12 in the night, it was announced that a son was born to Mangayamma, and the plaintiff is said to be that son. He was immediately recognized as his son by the late Raja who put him forward as such, in his letters and telegrams, and who by his uniform conduct till his death in 18 0, showed that he entertained no doubt on the point. The question to be decided is: was the plaintiff born to Mangayamma as alleged by him? Before referring to the oral evidence in the case, I think it is very necessary to deal in some detail with the circumstances on which the defence relies for suggesting that the plaintiff is not the son of his alleged mother.
1. Mangayamma was forty years old at the time of the plaintiff's birth and is alleged to have conceived after 23 years of sterility. It is argued that this is extremely improbable.
2. Then it is contended that in regard to the spurious pregnancy, the plaintiff's case that it was marked by certain features has been found to be false and it is suggested that the fact that the plaintiff has thought fit to embellish that part of the case must make the Court slow in accepting the evidence adduced to support that true pregnancy supervened.
3. It is then said that it is very unlikely that when spurious pregnancy occurs at a late period in life, it can be followed by a real pregnancy; this is said to be the next suspicious circumstance.
4. The case that the spurious pregnancy came to a definite end and that the real pregnancy began after Mangayamma's return to Pittapur is said to be a myth.
As I have said, Mangayamma came back to Pittapur in November of 1884 and within 11 months from then she is said to have been confined. The plaintiff in order to probabilize his case that the suprious pregnancy terminated, adduced evidence to show that Mangayamma had manses at Pittapur after her return from Tiruvur and before her alleged pregnancy. I have not a shadow of doubt that this evidence is false and it has been rightly discredited by the lower Court (para, 21 of the lower Court's judgment). In this case, where the plaintiff has been able to point to entries in account books to show when Mangayamma had periods, it is significant that he has failed to make out by relying upon similar entries, that the spurious pregnancy definitely came to an end, a fact which if established would have rendered his case of later pregnancy probable. Mr. Ramachandra Ayyar has strongly commented upon this suspicious circumstance and no answer has been suggested.
5. The plaintiff has adduced a mass of evidence but not a single witness has been examined who speaks to hie having been present at his alleged birth. This absence of direct evidence on the point is very remarkable in the circumstance of the ease. The late Raja had every reason to expect that if Mangayamma's pregnancy resulted in the birth of a son, the latter's legitimacy would be attacked. When Mangayamma was at Tiruvur, Ramakrishna kept watch on her doings and freely gave cut that she was feigning pregnancy with a view to foist a spurious child. In this connection two exhibits become very important, Exs. 60-H and 60-H (1); the former is a letter dated the 7th of September 1881 written by the late Raja to Mr. Grant; the latter is a memorandum sent as an enclosure to that letter. That memorandum shows that a close watch was set upon Mangayamma at Tiruvur by Ramakrishna and that, he was intending to suggest that a spurious child was introduced, The sending of this memorandum to Mr. Grant shows that the Raja became aware of the attempts that were then being made. Thus long before the birth of the plaintiff, Ramakrishna and his men made it quite public that they intended to make the attack which, in fact, has now been made. In spite of this warning, we find that no steps were taken either by the Raja or Mangayamma to place the matter of the plaintiff's birth beyond doubt. At Pittapur, attached to the hospital was a nurse and her services were not availed of. The ordinary dasis (maid servants) are said to have officiated as midwives, and a Doctor of inferior status (Dharmaraju) is said to have visited her for the first time only after the plaintiff's birth. It is strongly contended that this conduct on the part of the Raja and his wife is only consistent with the hypothesis that there was something to conceal and that in fact (he plaintiff was not born to Mangayamma.
124. I have now narrated the circumstances on which the defence relies and I must pay that there is quite an accumulation of suspicious circumstances against the plaintiff. I have given prominence to these features, for, to treat them lightly, as the District Judge has done, is to lose sight of the gravity of the questions which this issue raises; but, in my opinion, a finding cannot be based in a case of this kind on suspicion, however strong it may be.
125. As regards the argument that Mangayamma was past child-bearing, medical books show that it is unsafe to lay down any hard and fast rule.
126. In Legal Medicine by C.M. Tidy, Part II, 1883, there is the following passage at page 29:
Certainly cases of pregnancy up to 50 are not very uncommon and have occurred to most medical men with large practice. Between the ages of 50 and 60 the cases are very uncommon, nevertheless it must be admitted that well-authenticated instances are on record.
127. Emerson in Legal Medicine and Toxicology (1909) says that there are instances of women bearing children up to an advanced age and referring to child bearing age, observes the limits must not be too arbitrarily drawn.
128. Montgomery in his book on Signs of Pregnancy refers to La Motte who gives an account of two cases which are relevant to the present inquiry. The first related to a woman who lived a life of celibacy up to the age of 48 and then married and conceived and had a favourable labour. The other case was that of a woman who married when she was 51, immediately became pregnant and had a quick delivery. The author says that these facts must make one cautious) in pronouncing against pregnancy merely on the ground that the individual has exceeded by some years the period of life when ordinarily conception takes place. The author mentions also two cases that came under his own observation; in one, the lady married when about 2i years of age and had her first child after 19 years of married life: in the other the lady married at the age of 20 and became pregnant for the first time 24 years after marriage.
129. Again, the argument based on spurious pregnancy is not conclusive. It is no doubt said in medical books that spurious pregnancy is met with in sterile women who are approaching the menopause (Bee Gynaecology by Eden and Lockyer, page 108; Obstetrics by Williams, pages 208 and 209). The occurrence of menopause indicates generally that the woman has passed the child-bearing age, but our attention has not been drawn to any passage where it has been said that the above rule relating to spurious pregnancy is an inflexible rule.
130. It seems to me that it is unsafe to act upon suspicion and I, therefore, turn to the positive evidence in the case. In my opinion, the moot important evidence adduced on the plaintiff's side is that of witnesses who have gone into the box to prove three successive stages in Mangayamma's condition, first, that soon after her return to Pitapur she looked like an ordinary woman (meaning thereby not a pregnant woman), secondly, that she developed signs of pregnancy such as abdominal enlargement and thirdly, after the plaintiff's birth she resumed her normal condition. It is needless to refer many detail to this evidence as it has been fully adverted to in the judgment of the lower Court. I have not the slightest doubt that many of these witnesses have not scrupled to tell lies, but the fact that stands out is, that they are all agreed that Mangayamma passed through these three different stages. Many of these witnesses pretend to be able to tell us when and how often they saw the lady, what she spoke, where she was seated and so forth. When witnesses give evidence in such detail regarding events that took place at least thirty years previously, one is not disposed to place absolute confidence in their truthfulness. I cannot, however, on this account reject in toto the evidence of this large body of witnesses comprising as it does, men and women of all classes, relations, friends, dependents and servants. Much of this evidence is again open to the attack that it is of witnesses who are dependent upon the Raja, but in the very nature of things it is only such evidence that is available, and on the whole I am not prepared to dissent from the view taken of it by the lower Court.
131. As against this evidence the defence has examined witnesses to show that there were no such changes in the external appearance of Mangayamma. Ranganayaki, D.W. No. 29, a dasi of Subbayamma, who professes to have observed Mangayamma several times says that she never looked like a pregnant woman. She goes further and deposes that she did not, before Mangayamma's confinement, even hear of her pregnancy. Similarly, Chinna Ranganayaki, another dasi of Subbayamma, says that Mangayamma never appeared to be pregnant, not even five or six days previous to the announcement of the plaintiff's birth. She also maintains that she did not even hear of Mangayamma's labour pains on the day in question. This evidence cannot be true, for, if Mangayamma wanted to introduce a spurious child, it would be necessary for her to feign pregnancy as well as pretend that labour had occurred The defendants ask us to believe that without exhibiting signs of pregnancy, without feigning labour and without warning Mangayamma all of a sudden, in the' dead of night had the temerity to announce the birth of a child, not doubting that her husband, the inmates of her household and the public would be taken in by such a palpable falsehood. The defence having put forward this absurd theory has had to shape its evidence accordingly, Closely allied to this theory is another theory, advanced and adhered to at the trial (as appears from the note of the learned Judge) that the late Raja was not a party to the fraud but a victim of it. Mangayamma could not have long kept up the appearance of a pregnant woman without being detected by her husband. It is not suggested that the Raja and she were not on intimate terms and unless he was a party to the fraud, Mangayamma ran the risk every hour of her life, of detection and exposure. Evidence was, therefore, let in, to the effect that Mangayamma during this period did not exhibit any signs of pregnancy. It has been repeatedly pointed out to us in the course of the arguments that at the previous trial the theory put forward was that the Raja was also a party to the fraud. The case of the defence that the plaintiff is a spurious child was then accepted by the Court. Why this theory was abandoned and an impossible theory suggested, I do not care to speculate. The result remains, that the evidence given to suit this theory is utterly unworthy of credit.
132. This theory further involves that the Raja was quite unprepared for the event and that he was such a simpleton as to believe that his wife could give birth to a child in the face of the fact that she exhibited no symptoms of pregnancy from the day of her return to Pittapur.
133. This leads me to consider the evidence of a witness on whom the plaintiff strongly relies, Dharmaraju, P.W. No. 48. He is said to have entered Mangayamma's room with the Raja very soon after the birth was announced. He is further said to have felt the pulse of Mangayamma and given her some medicine. The plaintiff's case is, that the Raja expecting the confinement asked this man to be in attendance at the Fort. There is some suspicion attaching to this witness's evidence as he has deviated in certain important respects from his evidence at the former trial, and also as he is indebted to the plaintiff, having received liberal gifts from his father and being even on the date of trial in receipt of a large pension from the plaintiff. Here again the defence suffers from its theory. Jaldu Appi, D.W. No. 35, an important witness for the defendants, admits that as soon as the birth was reported to the Raja he came into the room accompanied by Dharmaraju, Sita, another defence witness, whose evidence at the former trial has been admitted deposed to the same effect. After stating that the Raja and the Dresser entered the room, she proceeds to say thus--
134. 'The Raja asked the Dresser to feel Mangayamma's pulse. He spoke something in English. Then the Dresser wanted to hold Mangayamma's hand. Mangayamma refused. The Raja then said 'I am here. You need not be afraid. Give your hand.' Then Mangayamma gave her hand and the Dresser felt her pulse.' If Mangayamma was practising deception upon her own husband, how did this Dresser happen to be on the spot? Was he an ally of Mangayamma bent on deceiving the Raja? If so, how did it happen that the Raja brought him into the room without even questioning him as to how he happened to be present at the Fort? The defence has not suggested that Dharmaraju was Mangayamma's creature. The witness thus was not the confident of Mangayamma. He was not the Raja's tool as the latter was admittedly not a, party to the fraud; his presence in the room is nevertheless admitted, Having regard to these facts, his evidence cannot be disbelieved.
135. The defence has adduced positive evidence in regard to the introduction of a spurious child. The witnesses examined on this point are Jaldu Appi and Sita to whom I have already referred. According to them, Mangayamma pledged them to secrecy and directed them to bring into her room a child which one Kanakayya was to keep ready in his arms outside the gate. Another servant by name Bounti brought into the room a pot containing some afterbirth and it was made to appear that it related to the child in question. I am not prepared to say that this account is on the face of it improbable. If Mangayamma intended to perpetrate a fraud of this kind she could only employ women of this description, but when their evidence has to be tested, it must be borne in mind that on their own showing they were accomplices and were prepared to take part in a grave offence. It would be very unsafe to act upon their evidence which does not fit in with the other part of the case as presented by the defence and which receives no corroboration from the surrounding circumstances.
136. There is other evidence adduced by the plaintiff which, in my opinion, is not of much value. There is, for instance, the conduct of Mangayamma after the event. If she was really guilty of the fraud, she would make her conduct suit her act. Thus, evidence of her conduct though undoubtedly relevant can be of little evidentiary value. Similarly, though it may reasonably be presumed that the Raja could not have been cheated, if, as a matter of fact, he was really imposed on, his subsequent conduct would signify little. I do not, therefore, propose to examine the rest of the evidence adduced on behalf of the plaintiff; more especially, because it has been fully discussed in the judgment of the lower Court.
137. I have now disposed of the question whether Mangayamma is the mother of the plaintiff. In regard to the plaintiff's paternity, Mr. Ramachandra Ayyar has frankly conceded that on the evidence available at this trial, he cannot seriously contend that it has been proved that the late Raja was impotent. My conclusion therefore, is, that the plaintiff is the son of the late Raja.
138. I should only like to remark in conclusion that this issue has given me much trouble, first, on account of the amazing mass of false evidence adduced for the plaintiff, and secondly, on account of the impossible and unsound theories on which the defence has chosen to rest their case--theories which conflict with their own evidence and are opposed to human probabilities; but, on the whole, after giving the case my best possible attention, I am prepared, though not without hesitation, to concur in the finding of the trial Court that the plaintiff is the son of the late Raja and Mangayamma.
139. In the result, on my finding on the issue of adoption, 1 would, differing from my learned brother, allow the appeal and dismiss the suit with costs throughout.
140. As we have differed as to the result of the case the appeal will be dismissed with costs. Vakil's fee Rs. 3,000.
141. Memorandum of objections follows.
142. Dismissed. No costs.