Kandimaila subbayya vs Kandimaila Ramakoteswara <BR> Kandimaila Ramakoteswara Rao Vs Kandimaila subbayya

Krishna Rao, J.—This is a defendant''s appeal, arising out of a suit brought by the respondent, Ramakoteswara Rao, for partition and recovery of possession of Ramayya alias Sriramulu was the appellant''s undivided brother and died issueless about 20 years prior to the suit, leaving him surviving his widow Seshamma. The plaintiff was the only son of Sriramulu''s paternal uncle''s son, Ramaswami who had married Seshamma''s sister Subbamma. About four years prior to the suit, Seshamma took the plaintiff to her house and began to bring him up.

She found the plaintiff affectionate and suitable for adoption and applied for the appellant''s consent by a registered notice Ex. A-1 dated 5-11-1949, stating inter alia that she intended to adopt for the salvation of her husband and for the benefit of his soul. The appellant sent the reply Ex. A-2 on 24-11-1949 refusing his consent to the adoption. The material portion of Ex. A-2 reads thus :

Kandimaila Ramaswami had only one son. Sending out such a son from Ramaswami''s family and Seshamma''s taking such a boy in adoption are opposed to Hindu Sastras. While so, it is Sub-bayya''s opinion that the adoption which is intended to be made by Seshamma is not proper. He does not consent to this adoption Ramaswami''s wife is Seshamma''s younger sister. She intends to do this with the object of passing property somehow to her younger sister''s son.

Ever since the death of Ramayya, Subbayya has been performing all the necessary karmas (ceremonies) for the said Ramayya''s attaining salvation.

Then the widow sought the assent of the sapindas next in order of propinquity viz., the sons of her husband''s paternal uncles Subbayya and Venkatadri by sending registered notices dated 18-1-1950. a copy of which is marked as Ex. A-3. Out of Subbayya''s three sons, P.W. 5 Veerayya and P.W. 9 Ramaswami, the natural father of the boy proposed to be adopted, gave their consent to the adoption. The notices sent to P.W. 6 Raghavayya. the remaining son of Subbayya and to half share in the plaint properties by virtue his right as the adopted son of the appellant deceased undivided brother, Ramiah alias Sri(sic) mulu. The parties belong to the Kamma community in the Guntur District. The main question for decision is whether the adoption of the respondent by Sriramulu''s widow, Seshamma, is va(sic) under the Hindu Law, as administered in S(sic) them India. The truth of the adoption was (sic)puted by the appellant in the Court below. It (sic) found in the affirmative by the learned Subordinate Judge and this finding is not challenged fore us.

The following pedigree explains the relationship between the parties.

Rangayya, the son of the other paternal uncle Ramayya were returned as having been refuse them.

The widow also sought the consent of three remoter gnatis viz., P.W. 7 Raghava(sic) P.W. 8 China Ramayya, and one Janikayya these along with P.W. 5 Veerayya, execute deed consenting to the adoption on 10-2-(sic) which is marked as Ex. A-9. Thereafter, widow adopted the plaintiff by a ceremony formed on 22-4-1950.

The material defences raised by the Appellant were that he was justified in refusin(sic) assent to the adoption as the adoption of an son is opposed to the Shastras, that the (sic) was not therefore entitled to seek the asse(sic) the remoter sapindas, that in fact she di(sic) attempt to obtain the consent of two of viz., of P.W. 6 Raghavayya and of Rangayya that P.W. 7 Raghavayya, P.W. 8 China Ram and Janikayya were not gnatis at all. The (sic)ed Subordinate Judge held that although the (sic)tion of an only son is unshastric, it was not (sic)per ground for the appellant''s refusing his (sic)sent, as such an adoption has been held valid in law in the case of Sri Balusu Guru (sic)swami v. Sri Balusu Ramalakshmamma, II Mad 398 (P.C.) (A).

He also accepted the oral evidence of P. Raghavayya, who said that he and Ram orally gave their consent to the adoption wh(sic) widow had asked them for it prior to her (sic) the registered notices. He found further P.Ws. 7 and 8 were remoter reversioners belt to the branch of one Ramayya, a brother (sic) rammulu''s paternal grandfather Veerayya. (sic) widow had obtained the assent of practical the sapindas after the appellant improperly (sic) his assent, the learned Subordinate Judge n(sic)ed the appellant''s contention that the adopt(sic) valid and passed a decree in favour of the respondent.

The learned Counsel for the appellant (sic)estions the correctness of the lower Court''s view (sic)at his refusal to give his assent to the adoption (sic)s improper. He does not dispute the position (sic)t if his refusal was improper, the widow was (sic)tled to go outside the undivided family and (sic)k the assent of divided or remoter sapindas to (sic)tify the adoption. This aspect of the matter (sic) elaborately considered by a Division Bench of (sic) Madras High Court in the case of Venneti Sundara Rama Rao Vs. Chamarti Satyanarayanamurthi being minor by natural father and guardian, Chamarti Bulli Venkatarao and Another,

There the undivided brother of the deceased (sic)band of the widow refused his assent for rea(sic)s which were found to be not justifiable. The (sic)ned Judges held that the assent of the divid(sic) grandfather of the deceased husband was suffi(sic) to validate the adoption. After reviewing the (sic)sions of the Judicial Committee on the subject, (sic) reached the conclusion that there is no dis(sic)tion in principle between a case where a co(sic)ener was incapable of giving his assent and before there was no necessity to consult him (sic)a case where a co-parcener improperly refused withheld his consent for adoption and that (sic)ther case the widow is entitled to travel out (sic) the family and seek the consent of the divided (sic)das.

It is also recognised by the learned Counsel that the shastric prohibition against the adop(sic) of an only son, which is the appellant''s ground refusing his assent, is only of a monitory and of a mandatory character. This was settled (sic)e case in ILR 22 Mad 398 (A) at p. 429, where Judicial Committee said :

Upon their own examination of the smritis Lordships find them by no means equally (sic)ced between the two constructions but with (sic)ided preponderance in favour of that which (sic)s the disputed injunctions as only monitory (sic)s leaving individual freedom of choice.

(sic)e contends that even a monitory precept is sufficient justification for a sapinda''s refusing (sic)nsent to an adoption. in this connection he (sic) out that in Venkatapathi Somayajulu v. (sic)mma, AIR 1916 Mad 629 (3)(C) and in ILR (sic) Mad. 461 : Venneti Sundara Rama Rao Vs. Chamarti Satyanarayanamurthi being minor by natural father and guardian, Chamarti Bulli Venkatarao and Another, it was that the widow was entitled to reject an offer (sic)e nearest sapinda to give his only son in (sic)on. He argues that if a widow can Pro(sic) refuse to adopt an only son, it would be (sic)y proper for a sapinda to refuse his assent (sic)h an adoption.

(sic) This leads us to a consideration of the (sic)nature of the functions of a sapinda. who (sic)d upon by a widow to assent to an adoption. (sic) (1950) Mad 461 at pp. 485, 490-491, 500-501 : (sic) 1950 Mad 74 at PP. 82, 84, 88) (B) the learned (sic)ges have shown how the effect of the earlier (sic)ns of the Judicial Committee as to the (sic) approach to the question has been pro(sic) modified by the decisions in Amarendra (sic)gh v. Sanatan Singh, ILR 12 Pat 642 : (sic) 1933 PC 155) (D), and Ramasubbayya v. (sic)uramayya, ILR (1948) Mad 362 : (AIR (sic) C 124) (E). The present position is sum (sic)p in the following sentences from the (sic)ent of Viswanatha Sastri, J.:

The root of the matter is that the permis(sic) the husband, or in its absence, the assent father Or other gnatis was required for an (sic)n by the widow by reason only of her dependence, adoption being in itself a meritorious act.....

That the consent of the sapinda, whether he is coparcener or a divided member, is required by reason of the presumed incapacity of women for independent action and not by reason of she effect of an adoption on the proprietary interest of the coparceners or reversioners was not firmly established till a later date (than the Ramnad Case 12 Moo Ind App. 397 (F)) in the evolution of the judge-made law.

The sapindas'' power of assenting or refusing assent to an adoption by a Hindu widow is, in my opinion, a fiduciary power which must be exercised for the end designed, namely, the substitution of an heir by adoption to the deceased person and not for the purpose of advancing or prejudicing the personal interest of this or that sapinda. The sapindas are to be regarded as a "family council the natural guardians of the widow, and the protectors of her interests, In giving or withholding their consent it is their duty, in this capacity to form an honest and independent judgment on the advisability or otherwise of the proposed adoption in and with reference to the widow''s branch of the family.

The last three sentences extracted above were quoted with approval in Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar, 1956-1 Mad LJ 430 at p. 440 : (AIR 1956 Mad 370 at P. 377) (G), and the learned Chief Justice who spoke for the Division Bench added :

The question whether the refusal of a particular sapinda can be disregarded as improper or not is a question of fact and, as other questions of facts must be decided on a consideration of the facts and circumstances bearing on the question. We do not think that there can be an exhaustive enumeration of justifiable grounds and another list of improper grounds. The same grounds in certain circumstances may be justifiable and in other circumstances not. The question must be examined with reference to the general attitude of the sapinda as expressed in the grounds given by him for refusing assent and not on an examination of any one ground as being in itself justifiable or otherwise.

Has the sapinda discharged his fiduciary obligation? Has he given an unbiassed and honest judgment? These are the questions to be asked and answered.

We are in agreement with the view that the propriety of refusal of assent to an adoption has to be judged in the context of all the facts and circumstances of the particular case and from the point of view that it is the fiduciary duty of the sapinda to advance the widow''s performance of the meritorious act of adoption. The ground that it is unshastric to adopt an only son cannot per se be considered a proper and justifying cause, because that would mean that a precept which has only monitory force in the smiritis get mandatory force when it is uttered by the nearest sapinda.

A perusal of the appellant''s letter Bx. A-2 clearly shows that he merely wanted to take advantage of the shastric objection to the adoption of an only son. while refusing his consent for the adoption of the respondent on this ground, he did not say that he was agreeable to the adoption of a boy who is not the only son of his parents nor make an alternative suggestion as to the boy that could be adopted. On the other hand, he said in his last sentence of Ex. A-2 that he was himself performing all the ceremonies necessary for Sriramulu''s attaining salvation thereby indicating that the widow need not make an adoption at all for the purpose of her husband''s salvation as mentioned by her in her letter Ex. A-1.

The learned counsel concedes that the appellant himself had no son at the time, who could have been given by him in adoption nor does he suggest that there was any other boy in existence whom it would have been more expedient and desirable for the widow to adopt. Reading Ex. A-2 as a whole and having regard to all the circumstances, it is clear that the appellant''s attitude was that the widow should not adopt a son at all. It follows that the appellant''s refusal of consent is improper.

The second branch of the appellant''s argument against the validity of the adoption relates to the question of fact found against him by the lower court that the widow obtained the consent of all the remoter sapindas. The learned counsel contends that out of the group of sapindas next in order of propinquity to the appellant, comprising P. Ws. 5, 6, 9 and Rangayya, the widow obtained the consent of only P. Ws. 5 and 9 and did not properly consult and much less obtain the consent of the other two viz. P. W. 6 and Rangayya.

As regards the group of the still remoter agnates P.W. 7 Raghavayya, P.W. 8 China Ramayya and Janikayya who gave their consent by the registered deed Ex. A-9 dated 10-2-1950 his contention is that they are not gnatis at all. On the first question of the consent said to have been accorded by P.W. 6 Raghavayya and by Rangaiah, the learned Subordinate Judge relied on the evidence of P.W. 6 who supported the story of P.Ws. 1 and 9 that he and Rangayya gave their consent orally prior to the issue of the registered notices. But this story is an improvement on the allegations in the plaint which ran:

Raghavaiah and Rangaiah who were already influenced by defendant refused to receive the letters and commit themselves in one way or the other. Rangaiah is closely related to defendant and Raghavaiah is under Rangaiah''s influence and hence they were indifferent and non-committal in their attitude.

The clear case in the plaint was manifestly that the widow was not able to obtain the consent of P.W. 6 Raghavaiah and of Rangaiah. Apparently P. W. 6 was won over by the time of the trial to say that he and Rangaiah were orally asked by P.W. 1 prior to her issuing the registered notices to them and gave their consent.

The alleged prior oral consent is not mentioned in the notices and there are irreconcilable discrepancies in the evidence of P.Ws. 1, 6 and 9 as to the time and the manner in which the consent was asked for and given. We are therefore inclined to agree with the appellant''s criticism that the learned Subordinate Judge erred in his appreciation of the evidence on this part of the case. In our opinion, the belated story of oral consent to the adoption on the part of Raghavaiah and Rangaiah cannot be true.

However, it has been held that the duty cast by law on the widow is only to consult all the nearer sapindas and that obtaining consent of all of them is not imperative. ILR (1950) Madras 461 : Venneti Sundara Rama Rao Vs. Chamarti Satyanarayanamurthi being minor by natural father and guardian, Chamarti Bulli Venkatarao and Another, The learned counsel''s contention is that sending a registered letter as was done by the widow P.W. 1 to P.W. 6 Raghayayya and to Rangayya which is returned without being opened by him is not valid consultation. He relies on the following observation of Ramesam, J. in the case of A. Brahmayya and Others Vs. C. Rattayya and Others,

It is difficult to hold that a registered lett(sic) to a person, containing a request to assent an adoption the letter being never opened by h(sic) and returned is a valid consultation.

The learned Judge''s reasoning was that a registered letter was somewhat unpleasant form of communication which may be used only in the l(sic) resort. The facts there showed that the cons(sic) tation by sending a registered notice was (sic) bona fide. It was sent at the last moment ab(sic) four months after the assent of two other ki(sic) men had been obtained arid merely to satisfy (sic) requirements of the law. The observation therefore has to be taken in the context of the ot(sic) facts which pointed to the conclusion that particular registered letter was merely a show consultation by the widow who, for reasons her own, did not expect the sapinda''g assent.

It cannot be understood as laying down t(sic) in law the sending of a registered letter is me(sic) a valid consultation; especially as the learned Judge himself has said that this may be don(sic) the last resort. Here the widow P.W. 1 living in the village of Gonasapudi in Bap Taluq while P.W. 6 Raghavayya and the of sapinda Rangayya were living in a different village viz., Kukkapallivaripalem in Narasara(sic) Taluk. It is not reasonable to hold that a wi(sic) is bound to personally approach the sev(sic) sapind as residing in different villages and sh(sic) not consult them by sending letters.

It appears from P.W. 6''s evidence that was hiding himself somewhere owing to the (sic) munist trouble in the village at that time therefore the postman was unable to deliver widow''s letter to him. The learned counsel the appellant himself strongly relies on this (sic)ence to show that it was not a case of re(sic) of a notice knowing its contents. He says just like P.W. 6 Raghavayya the other sa(sic) Rangayya also would have been hiding hi(sic) owing to the trouble from the Communists therefore both of them were not consulted a the covers containing the notice not having even tendered to them. But it was observe Viscount Cave, in Krishtnayya v. Lakshmi(sic) ILR 43 Mad 650 : (AIR 1920 PC 4) (I), where nearest sapinda happens to be in a di(sic) country and it is impossible without great culty to obtain his consent or where he is a(sic)vict or suffering a term of imprisonment hi(sic)sent may be disregarded.

When a sapinda secludes or hides himsel makes himself not available for normal mode human contacts, it appears to us that the (sic)tion is similar to that of a sapinda who is distant country or in prison resulting in its quite impracticable to obtain his consen(sic) follows that the want of consent on the of P.W. 6 Raghavayya and of Rangayya material.

With regard to P.Ws. 7 and 8 and (sic)kayya the learned counsel''s contention is th(sic) evidence regarding their relationship sou(sic) be disbelieved because the relationship was mentioned in the plaint which referred to as merely "distant gnatis". But it is quite that the widow did not know the exact r(sic) snip between her husband, who had die ago and such distant gnatis. No doubt so (sic)nikayya is concerned, even P.W. 7 says that (sic) is unable to state how janikayya is related to (sic)em and P.W. 8 says nothing about the relation. (sic)ip. It is therefore doubtful whether Janikayya (sic)a grandson of Kandimalla Veerayya''s brother (sic)mayya, just like P.Ws. 7 and 8. But we see (sic) reason to differ from the learned Subordinate (sic)dge who accepted the evidence that P.Ws. 7 (sic)d 8 are agnates.

The result is that the want of assent to (sic) adoption on the Part of the appellant, of P.W. 6 Raghavayya and of Rangayya may be regarded and the widow has obtained the (sic)ent of all the four other known sapindas. It (sic)lows that the attack against the validity of the (sic)ption fails. (The rest of the judgment is not (sic)terial for reporting.)