Popuri Murahari Brahma Sastri alias Sreerama Sarma being minor by the alleged adoptive mother and guardian Venkatasubbamma and Another vs Chilukuri Sumitramma and Others

Madhavan Nair, J.—Defendants 1 and 2 are the appellants. The appeal arises out of a suit instituted by the plaintiff for a declaration that the

alleged adoption of the 1st defendant by the 2nd defendant is not true or valid.

One Popoori Ramakrishnayya died in or about 1900. The plaintiff is his daughter by his first wife. After the death of the plaintiff''s mother,

Ramakrishnayya married the 2nd defendant. At his death she had not attained puberty. Defendants 3 and 4 are the divided brothers of the

deceased Ramakrishnayya and his nearest gnatis. 1st defendant is the son of the 4th defendant. On 10th July, 1923, the 2nd defendant sent a

registered post card, Ex. III, to the 3rd defendant requesting him to give her written authority to adopt. This letter was refused by him. On 26th

August, 1923, she sent another registered post card Ex. IV to the 3rd defendant making the same request. This was also refused. On 20th

September, 1923, the registered post card Ex. V was sent by her pleader making the same request. This was also refused by the 3rd defendant.

On the same date as Ex. III the 2nd defendant sent Ex. VII to the 4th defendant asking his permission to adopt. On the 25th of November, 1923,

he gave the required consent for the adoption by executing Ex. II, the deed of authority. On 17th April, 1924, the 2nd defendant adopted the 1st

defendant and executed in his favour the adoption deed Ex. I. This was attested, amongst others, by Popoori Sastrulu and Popoori Gangadhara

Sastri, two reversioners of the deceased Ramakrisbnayya. The evidence discloses that two other reversioners of Ramakrishnayya--Popoori

Sambayya and Popoori Ramatharakam--were also in existence at that time. The plaintiff denied the factum of the adoption and contended that

even if true it was invalid. Holding that the adoption was proved, the learned Judge held that it was invalid for two reasons: (1) that the plaintiff who

was the nearest reversioner was not consulted, and (2) that even if plaintiff''s consent was not necessary, when the 3rd defendant had not given his

consent the adoption should not have been made on the sole consent of the 4th defendant without convening a meeting of the other kinsmen and

taking their consent. The second ground is more elaborately stated in para. 27 of the judgment as follows:

The second reason for holding that 1st defendant''s adoption is invalid is that, even assuming that plaintiff was not one of those to be consulted, the

2nd defendant should have convened a gathering of kinsmen when she found that of the two nearest agnates one of them only was prepared to

give his consent. As remarked in Anne Brahmctyya v. Chelasami Ratiayya 1924 M.W.N. 844, a majority of the kinsmen must consent and one of

two cannot form majority. If 3rd defendant capriciously withheld his consent, the 2nd defendant should have taken the consent of the next

reversioners who are said to be one Popoori Sambayya and one Popoori Ramatharakam.

In appeal Mr. Varadachari argues (1) that in law the consent of the plaintiff is not necessary for the widow to make a valid adoption, and (2)

that the evidence, shows that before making the adoption she obtained the consent of a majority of the kinsmen or such consent of the kinsmen as

is sufficient to show that her act of adoption was done in the proper and bona fide performance of a religious duty and neither capriciously nor

from a corrupt motive--see Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397--which he contends is all that is

required in law to make the adoption valid in the absence of the husband''s authority.. In addition to the grounds found in his favour by the Lower

Court, Mr. Somasundaram on behalf of the 1st respondent urged before us that the authority given to the widow by the 4th defendant is too

general to be valid and that the evidence shows that the consent was procured by corrupt motives. The latter ground though taken was not pressed

as the evidence in support of it was stated to be weak, and therefore need not be dealt with. The ground that the authority is too general is also

unsubstantial. In Suryanarayana v. Venkataramana ILR (1903) Mad. 681, the decision referred to in support of this contention, the assent of the

sapinda obtained by the widow was for the adoption of ''any boy at anytime'' and this was not acted upon for 9 years. The assent given by the 4th

defendant by Ex. II is not to adopt any boy whom the widow may like but "" any boy whom you may like either from among agnates or from

sagotrajas (the italics are ours) for performance of religious rites as ordained by Sastras..."". The class from which the adoption is to be made is

clearly indicated and is not left as vague and as indefinite as in Suryanarayana v. Venkataramana ILR (1903) Mad. 681. It cannot also be said that

after obtaining the consent there was any delay in making the adoption. No doubt the adoption was about 24 years after the death of the husband,

but it must be remembered that at the time of his death the 2nd defendant was only about 11 years old. If the adoption is otherwise valid it cannot

be said that it must be held to be invalid solely on the ground that it was not made by her at a date earlier than 1924. The only substantial grounds

for consideration therefore are the grounds urged in the Lower Court and we will deal with them in order..

The first question is whether the adoption is invalid for the reason that the plaintiff''s consent was not obtained. It is conceded that if the

promotion of the spiritual interests of a deceased husband is to be the main factor in determining the validity of an adoption, then the argument that

the deceased husband''s daughter should be consulted has obviously not much force; but what is contended is that the protection of his estate for

his heirs should also be considered by the widow in making the adoption and, if so, the adoption without consulting the daughter should be held to

be invalid. Admittedly there is no authority either of Hindu Law texts or of any decision in support of this proposition; what authority there is, is

against it. In Viswasundara Row v. Somasundara Rao ILR (1920) Mad. 876 the question arose whether a daughter''s son is entitled to be

consulted regarding, an adoption by a widow and it was held that as he is not a gnati he has no right to be consulted. As all the arguments now

advanced in support of the proposition have been elaborately dealt with in that case we do not think it is necessary to discuss the question again in

this judgment. If a daughter''s son has no right to be consulted, then it must follow that the daughter can have no ground to say that she should be

consulted; obviously she can have no more right than her own son. Mr. Somasundaram contends that this decision has been dissented from and

that ''gnatis'' (kinsmen) whose consent is material to validate an adoption have been interpreted in subsequent judgments to include cognates also

bringing within its description the daughter of the deceased husband, and reference was made to Anne Brahmayya v. Chelasami Rattayya 1924

M.W.N. 844 and Kesar Singh Vs. The Secretary of State for India in Council, . In the former case Ramesam, J. no doubt dissented distinctly

from the decision in Viswasundara Row v. Somasundara Rao ILR (1920) Mad. 876 but Jackson, J. expressly says, following Viswasundara Row

v. Somasundara Rao ILR (1920) Mad. 876 that a daughter''s son is not entitled to be consulted as he is not a gnati. Both the learned Judges seem

to have based their decision on the facts of the case which showed that of the two nearest agnates one was not consulted at all and the consent of

the other was corruptly obtained and that therefore the adoption was invalid. The question whether the assent of a daughter''s son of her deceased

husband should be obtained by the widow to make an adoption valid did not necessarily arise in the case. In Kesar Singh Vs. The Secretary of

State for India in Council, Spencer and Venkatasubba Rao, JJ. held that the reasons given by the learned Judges in Viswasundara Row v. Soma-

Isundara Rao1 for excluding a, daughter''s son from the class of kinsmen whom it is obligatory for a widow to consult were not convincing and well

founded. But that decision cannot help the respondents as what was decided in that case was that ""In the absence of agnate reversioners (the italics

are ours) a Hindu widow can, in Southern India, adopt with the consent of the nearest cognate reversioner"". And further, the question of the

consent of the daughter''s son did not arise in that case. The point that was decided in that case is thus stated at p. 679:

There being no agnate relation and the nearest cognate relation who under the law would be the presumptive reversioner having assented to the

adoption, does his consent validate it?

It would thus appear that there is no express decision by a bench differing from the decision in Viswasundara Row v. Somasundara Rao ILR

(1920) Mad. 876 As that decision is still good law, following the reasoning adopted in it we overrule the contention that the 2nd defendant in this

case should have, before adopting the 1st defendant, obtained the consent of the plaintiff for making the adoption valid.

The next question is whether the Lower Court''s decision that the adoption is invalid on the ground that a clear majority of the agnates was not

consulted and did not consent, can be upheld. The nearest sapindas of the 2nd defendant''s deceased husband are defendants 3 and 4; and

Popoori Sambayya, Popoori Eamatharakam, Popoori Sastrulu and Popoori Gangadhara Sastri are his remote reversioners. Of these the first two

seem to be a degree nearer in relationship to the deceased than the other two; but defendants 3 and 4 being the nearest agnates, the others may be

taken to fall within the general class of remote reversioners. The 3rd defendant was twice written to by the widow for obtaining his consent. On

both occasions he refused to receive the letter addressed to him. The postman D.W. 2 gave evidence to the effect that he told him that the

registered post cards came to his address and were sent by the 2nd defendant whose name was noted on the cards and that he refused to receive

them saying that he did not require them. About these letters the 3rd defendant in his evidence says:

I judged that they were in connection with the authority to adopt ...I asked the postman what they were about. He said that 2nd defendant wanted

to adopt and hence sent the notice.

The 2nd defendant''s vakil also wrote to him and that letter also was refused. It is clear that his conduct in refusing the letters was capricious. He

knew what the letters were about and yet he would neither consent nor refuse. Of course in his evidence he now says that he had already given her

consent and that being so he thought that there was no necessity to ask again for it. Evidence has been now given by the defendants to show that

there was a gathering of the kinsmen prior to the adoption and that the 3rd defendant specifically gave his consent at such a meeting. The evidence

on this point has been rightly disbelieved by the learned Subordinate Judge. It is clear that the 3rd defendant is now making an effort to help the

widow. We must therefore take it that the 3rd defendant capriciously refused his consent when the widow asked him for permission to adopt. The

4th defendant, as we have already said, gave his consent. The reversioners Sambayya and Rama-tharakam were not consulted, but the other two

reversioners were present at the ceremony and they actually attested the deed of adoption (Ex. I) along with the acting Village Munsif and many

others. The ceremony of adoption must have been sufficiently public, and these two reversioners would not have attested the deed without

knowing what it was about. In these circumstances it may be taken that they gave their consent to the adoption. If the 3rd defendant is excluded as

one who has virtually refused his consent, then amongst the five agnates of her deceased husband the widow obtained the consent of the only

remaining nearest sapinda and two of the reversioners, before making the adoption. This would constitute support of a majority of her deceased

husband''s agnatic kinsmen in support of the adoption. It is argued that if the 3rd defendant capriciously withheld his consent the 2nd defendant

after obtaining the consent of the 4th defendant should have taken the consent of the next reversioners Sambayya and Ramatharakam and since

their consent was not taken the consent of the other reversioners Sastrulu and Gangadhara Sastri is useless and that the adoption is therefore

invalid. The Privy Council cases which have a bearing on this point do not support this argument. It is no doubt obligatory on the part of the widow

to consult the nearest sapindas; but if their consent is capriciously withheld it is not necessary that a family council should be held to consider the

propriety of the adoption, or that the reversioners should be consulted in the order of their degree of relationship to the deceased husband, or that

even that all the reversioners should be consulted. The reason for the widow to obtain the assent of a kinsman and the nature of the assent are thus

described by their Lordships of the Privy Council in Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397:

The assent of the kinsmen sefems to be required by reason of the presumed incapacity of women for independence rather than the necessity for

procuring the consent of all those whose possible and reversionary interest would be defeated by the adoption.... 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.

Referring to this passage- their Lordships explained it in Vellanki Venkatakrishna Rao v. Venkata Rama Lakshmi (1876) L.R. 4 IndAp 1 : ILR

1 Mad. 174 (P.C.) as follows:

All which 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 sapinda, 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.

What is meant by ''family council'' used in this passage is explained by their Lordships in 24 CWN 905 (Privy Council) , where it is observed:

The reference to a ''family council'' gave rise to some doubt whether, where there were agnatic relations closely related to the deceased, the assent

of those standing in a remoter degree was either necessary or sufficient ...The consent required is that of a substantial majority of those agnates

nearest in relationship who are capable of forming an intelligent and honest judgment on the matter.

These passages which form the basis of the law on the point, read together, do not make it obligatory that a family council of the agnates

should be called by the widow to consider the propriety of the adoption or even that all the reversioners should be consulted before the adoption is

made. The nearest sapindas, of course, should be consulted; but when it becomes necessary to consult the reversioners all that is wanted is that

there should be such evidence of consent as would show that the widow in making the adoption is not acting improperly or capriciously or from a

corrupt motive. This would be proved no doubt by showing that the opinion of a substantial majority of the reversioners is in favour of the

adoption; but it does not: mean that each and. every reversioner should be consulted or that If one or two are omitted from consultation the

adoption would be necessarily invalid. In this case it is not shown that Sambayya and Rama-tharakam were not consulted by the 2nd defendant for

reasons which would suggest that if consulted they would have opposed the adoption or that she had any special reason for not consulting them.

As a matter of fact the evidence shows that Sambayya was present at the adoption ceremony though he has not attested the document. The

reversioners form a class of agnates that should be consulted by the widow and if she is able to show that a substantial majority is in favour of the

adoption she must be taken to have done all that is required under the law to make the adoption valid. That the nearer reversioners were not

consulted but only the opinion of those more remote than the excluded ones was taken, would have its value as a question of fact in arriving at a

conclusion whether a substantial majority in the circumstances of the case can be said to have given an opinion in favour of the adoption. Each case

must depend upon its own circumstances. So long as there is a preponderance of opinion amongst the reversioners in favour of the adoption, we

do not think that the omission to consult one or two of the reversioners nearer than those that were actually consulted will by that fact alone

invalidate the adoption. In the case before us there can be no question about the propriety of the adoption or of the fitness of the boy actually

adopted. There is not a shred of evidence to show that it was not necessary for the widow to make the adoption, nor is there any evidence to

show that in making the adoption she was acting improperly or from corrupt motives. The 3rd defendant having refused to say yes or no to her

request for permission, she obtained the consent of the 4th defendant, the next nearest sapinda, and of two other reversioners, thus obtaining the

opinion of a substantial majority in her favour. The fact that two of the reversioners were not actually consulted or that a family council was not

called to consider the propriety of the adoption will not in our opinion make the adoption of the 1st defendant invalid in the circumstances of the

case. For the above reasons we would hold that the adoption of the 1st defendant by the 2nd defendant has been proved to be valid.

We would therefore set aside the decree of the Lower Court and dismiss the plaintiff''s suit with costs throughout.

Jackson, J.

I agree.

I think that in this vexed question of adoption by the widow in the absence of her husband''s authority the guiding principle is the passage in

(1876) L.R. 4 I.A. 1 (Privy Council) quoted by Lord Cave in 24 CWN 905 (Privy Council) :

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.

In (1918) L.R. 45 I.A. 265 (Privy Council) the word ''requisite'' is used almost as though the assent was. something more than evidence

supporting an inference, and amounted to an essential pre-condition of the adoption. But I do not think that the Judicial Committee intended to

modify the law as previously laid down.

It has been held by this Court in Viswasundara Row v. Somasundara Rao ILR (1920) Mad. 876 that a daughter''s son cannot claim as of right

to be consulted by the widow, and that ruling is still binding upon us, though it was questioned by a single Judge in Anne Brahmayya v. Chelasami

Rattayya 1924 M.W.N. 844.

In Kesar Singh Vs. The Secretary of State for India in Council, this Court had to consider a peculiar case where there were no surviving

agnates who could have been consulted, and it held that in that circumstance the consent of cognates would afford the support to the inference that

the adoption is not capricious for which the Court is seeking. That seems to be a natural and logical conclusion, and I say that in my judgment in

Anne Brahmayya v. Chelasami Rattayya 1924 M.W.N. 844. I never intended to suggest anything to the contrary. I was only concerned in

supporting Viswasundara Row v. Somasundara Rao ILR (1920) Mad. 876, and stated that although in my opinion the consultation of a cognate

was not essential, it might well be very useful in helping the Court to come to its conclusion. If the words on page 658 in Kesar Singh v. Secretary

of State ILR (1926) Mad. 652 : (1926) 1 M.L.J. 16, ""there appears to be no authority for limiting the class of gnatis and sapindas whose assent

may be taken by a widow"" and again ""the reasons given by them for excluding a daughter''s son"" mean that according to my judgment the consent

of cognates may not be taken, and a daughter''s son must be excluded, I can only say that my judgment has been misunderstood. There was no

question of exclusion in my mind, but I did not regard the assent of a daughter''s son to be essential, provided that there was sufficient consent of

agnates to support the inference of good faith.

Applying those principles to the present case I find no reason to infer caprice, and sufficient consultation and consent to rule out that inference.

The widow was acting under legal advice and tried'' to consult both of her husband''s brothers, defendants 3 and 4. Defendant 3 declined to help

her by refusing the letter, though he was aware of its contents which may clearly be styled an improper refusal, so that he counts for nothing. The

second brother, Defendant 4, assented in terms which are not too general. Then two remoter sapindas obviously assented because they both

attested the deed and were present at the adoption. There is no reason to suppose that 4th defendant was exercising undue influence over the

widow, or that she merely wished to spite the plaintiff. The son of the 4th defendant was the natural person to be selected for adoption, and all that

can be said against it is that the widow might have performed it at an earlier date. But that alone is not sufficient to invalidate an adoption. Of

course the adoption disappointed the hopes of plaintiff''s son as reversioner, but unless the adoptee happens to be the reversioner himself that is

inevitable. A reversioner has no more right to forbid an adoption because his interests are affected, than an heir has to forbid a natural birth. And if

an adoption is regarded as a form of birth the logical conclusion would seem to be that at which the Bombay Courts have arrived, that the widow''s

motive in making an adoption is no more material than a wife''s motive in having a baby. The trend of Madras decisions however makes the motive

relevant; but in this case I agree that there is no reason for holding that the motive was capricious.