Behara Viyyamma and Others vs Ayyagari Veera Venkata Satya Suryaprakasa Rao, minor by maternal aunt and next friend Vaddiparti Ramayamma and Another

Alfred Henry Lionel Leach, C.J.—The main question in this appeal is whether the first respondent is the adopted son of one Suryaprakasa

Rao, an inamdar of Tirupathi in the Godavari District. Suryaprakasa Rao died, in the year 1914, and it is the first respondent''s case that his widow

adopted him as a son to her deceased husband in 1928, the consent of the nearest sapinda having been obtained. The appeal also challenges the

validity of three alienations made by the widow before the adoption. The Subordinate Judge held that the adoption of the first respondent was valid

and that the alienations were not binding on him. The suit was filed by the first respondent for a declaration that his adoption was valid and for an

order setting aside the alienations. The appellants are the sixth defendant who bought 1.36 acres of land from the widow, the legal representatives

of one Peda Subbanna in whose favour the widow executed a usufructuary mortgage of another property, and the legal representatives of another

person named Subbanna who was also a mortgagee of land belonging to Suryaprakasa Rao''s estate.

The appellants challenge the correctness of the finding of the Subordinate Judge that the first respondent was validly adopted on two grounds. In

the first place they say that when the widow adopted the first respondent, she was unchaste and therefore under Hindu law could not adopt a son

to her husband. In the second place they say that the adoption ceremony was not valid because the widow did not herself receive the boy direct

from the hands of the natural father, but through agents appointed by her for this purpose. In Sayamalal Dutt v. Saudamini Dasi (1870) 5

Beng.L.R. 362, the Calcutta High Court held that a Hindu widow who was living in concubinage and was in a state of pregnancy resulting from

such concubinage was incompetent to receive a son in adoption to her deceased husband. The Court has been informed that there is no decision of

this Court on the question; but I think that it may be taken that a Hindu widow cannot lawfully adopt in the circumstances like those set out in the

report of Sayamalal Dutt v. Saudamini Dasi (1870) 5 Beng.L.R. 362. It is not necessary to consider to what length the Hindu law goes in this

respect, because it is quite clear that the evidence in this case does not prove that the widow was unchaste at the time she made the adoption.

When her husband died in the year 1914, the widow was only 11 years of age. The village schoolmaster, the priest, and the karnam have all

given evidence on this question and they are in agreement that the widow was not living, and according to them she had never lived an immoral life.

The appellants rely on a statement of the widow herself when in the witness box. The statement is to the effect that four years after her

husband''s death, she lived with one Venkatachalapathy. The Subordinate Judge has refused to believe this because the widow has now repudiated

the adoption and is supporting the alienees. Even if it were true that four years after her husband''s death she became the mistress of the person

mentioned, that in itself would not mean she could not make a valid adoption in the year 1928. I will assume for the purposes of this case that her

evidence as to what happened four years after her husband''s death is true; but before the appellants can succeed on this point, they must show

that she was living an immoral life in 1928. Admittedly the evidence does not go to this ""extent. In fact, Behara Tammiraju, the third witness called

for the contesting defendants, stated that the widow had repented of what she had done. Mr. Somasundaram for the appellants has very properly

stated that the Hindu law will not regard a widow as unchaste because of her conduct many years before the adoption. The appellants have entirely

failed to prove immorality against the widow in recent years, and I have no hesitation in concurring in the opinion of the Subordinate Judge that the

widow was not precluded from making a lawful adoption of a son to her deceased husband.

Admittedly the natural father was asked to give his son in adoption. He consented and the datta homam ceremony was performed. The natural

father and the adoptive mother were present at the giving and taking of the boy and during the datta homam ceremony. The boy was actually

handed over by the natural father to one Ayyagari Ramachandrudu and his wife who were authorised by the widow to receive the boy from him,

and having received the boy, they handed him to the widow. The plea of invalidity here is based entirely on the fact that the widow did not receive

the boy direct from the hands of the natural father. This plea I find myself unable to accept. The essentials here are the giving by the natural father

of the boy and the acceptance of him by the adoptive parent, and in this case there was a giving and an acceptance. On the 15th October, 1928,

that is, some two months after the adoption, the widow executed a deed in which she made the boy''s natural father his guardian. This deed

contains the following statement:

I had the said boy with me and, on! 18th August, 1928, I requested you to give him in adoption as the son to my husband according to the Hindu

Dharma Sastras; consenting thereto you gave the said boy to me and so I received him and after causing all the ceremonies, namely, datta

homams, bhoothakarma namakranams, etc., to be duly performed and after giving (the boy the name of Ayyagari Veera Venkata Satya

Sooryaprakasa Rao), I have chosen (the boy) as the son and the Kartha of my husband and myself.

The question whether the father could appoint an agent to give the boy in adoption on his behalf was raised in the Bombay High Court in the case

of Vijiayarangam and Damodhar v. Lakshuman and Lakshmi (1871) 8 Bom. H.C.R. 244, and it was held that an agent could act in this respect. In

the course, of his judgment in that case, West, J., observed:

The gift and acceptance in such a case must, as Sir T. Strange (I, 95) has observed, be manifested by some overt act; and here Yeshvadabai did

not in person hand over her son;, to Savitri but she Commissioned her uncle to do this, being at the time too unwell to attead the ceremony herself.

The Hindu law recognises the vicarious performance of most legal acts; the object of the corporeal giving and receiving in adoption is obviously to

secure due publicity (Colebrook''s Digest, Book, V.T. 273, Commentary), and Yeshvada''s employing her uncle to perform this physical act,

which derived its efficacy from her own volition accompanying it, cannot, we ''think, deprive it of its legal effect. We hold,, therefore, with the

learned Judge, that the adoption is proved and effectual.

This decision was approved of by the Bombay High Court in Shaansing v. Santabai ILR (1901) Bom. 551 In that case a Hindu father had been

converted to Mohamadanism. He had a son and it was arranged that the son should be given in adoption. For this purpose he delegated authority

to his brother. The Court held that the delegation was lawful and that the adoption which followed was lawful. In my opinion, these decisions are

correct and if a natural father can lawfully authorise another to give his son in adoption, it must follow that the adoptive parent can delegate

someone to accept the child in adoption on his or her behalf. If this were not so, what would be the position when through accident or illness the

natural father or the adoptive parent could not be present in person to do what is necessary? There could be no adoption. In the present case the

adoptive mother having appointed agents to receive the boy, was herself present and accepted the boy through the hands of her representatives

who were sitting close to her. Here again I have no hesitation in concurring in the finding of the Subordinate Judge that there was a lawful giving

and taking and that datta homam ceremony was properly performed.

The contentions of the appellants that the '' Subordinate Judge was wrong in setting aside three of the alienations can be disposed of in very few

words. The properties were sold or mortgaged for the payment of ''sundry debts'' or ''for family expenses''. There is no evidence as to what the

sundry debts were, whether they were debts which had been incurred on behalf of the estate or whether they were debts of the deceased or the

widow''s personal debts, and there is no evidence as to what the family expenses were. Further, the alienees made no attempt to satisfy themselves

that the raising of the moneys was necessary for the purposes of the family. In these circumstances the Subordinate Judge was quite right in holding

that the alienations were not binding on the adopted son.

The appeal fails and will be dismissed with costs in favour of the first respondent.

Bell, J.

I agree.