(sic) Gurulingaswamy vs Shri Balusu Rama-Lakshmamma and Another

Muthusami Aiyar, J.—There are two proprietary Estates called Kapileswarapuram and Kesanakuru in the District of Godavari. Their last

male owner was one Buchi Sarvarayudu. He died without male issue leaving him surviving a widow named RamaLakshmamma. On the 10th

November 1888 she adopted the 2nd defendant, Pattabhiramayya and this suit was brought to have it declared that his adoption is invalid and

inoperative.

It is not alleged in the plaint that Buchi Sarvarayudu authorized Rama-Lakshmamma to adopt and it is the case of both parties that the adoption

was made under the sanction or with the consent of his sapindas or gnatis. The plaint alleged that their consent was given under corrupt

inducement. It is an undisputed fact that the 2nd defendant was the only son of hid father and he was given in adoption by his mother after the

death of his father. On this point the plaintiff''s case was that a Hindu widow in Southern India is incompetent to give as well as take a son in ad

(sic) without express authority from her husband. It was (sic) for the defence that no such authority was needed to validate gift in adoption and that

2nd defendant''s father had also given such authority prior to his death. The adoption was impeached by the plaintiff on three grounds:

I. The sanction or the consent of Sapindas was not given bona fide.

II. The adopted was an only son, and

III. A widow was incompetent to give away her only son save under express authority from her husband.

The plaint admits that plaintiff is one of the Sapindas of Sarvarayudu who consented to or concurred in the adoption and the pedigree filed in the

case shows that defendants 3, 5 and whose names were struck out by the judge on the ground that were not necessary parties to the suit are

nearer in sapinda relationship than plaintiff.

Two preliminary objections were taken to the suit, viz.

I. That as a remote reversioner the plaintiff could not maintain the suit and

II. That by his concurrence in the adoption when it was made he was estopped from impeaching its validity.

These form the subject of the 1st and 2nd issues and the averments in regard to the invalidity of the adoption form the subject of the 3rd issue.

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Passing on to the 1st issue, there can be no doubt that it must be decided in appellant''s favor. The general rule is no doubt that a suit of this

nature should be brought by the presumptive reversionary heir, but it is a recognized exception to that rule that a more distant reversioner can

maintain the suit, if he can show that those reversioners who are nearer to the deceased in the line of succession are either in collusion with the

widow, or have precluded themselves from interfering, or refused without sufficient cause to institute proceedings, or concurred in the act alleged

to be wrongful. The law is enunciated to that effect by the Privy Council in Rani Ananda Koer v. The Court of Wards, L. R 8 I. A 22 There is

proof in the case before us that defendants 3 and 5 who are nearer than plaintiff sanctioned or concurred in the adoption and 7th defendant who is

also a reversioner withdrew the suit he had instituted to set aside this adoption. In passing, I may also observe that the judge is in error in striking

out the names of nearer reversioners. They are legitimate parties to the suit and their Lordships of the Privy Council observe to that effect in the

case cited above.

As regards the 2nd preliminary question, the decision must be in plaintiff''s favor. No estoppel can arise from ignorance of law which both

parties must be/presumed to know. The adoption took place in 1888 whilst this suit was brought in 1892. There are not in this case equitably

considerations consequent on the growth of a new family or rights of property under an invalid adoption concurred in for a considerable interval of

time. It must also be remembered that according to true Hindu theory, adoption is both a religious and a secular act and estoppel cannot take the

place of a religious act on which rests the conventional Hindu belief that a valid adoption generates filial relation and religious competency to make

funeral and annual offerings with efficacy

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Another contention with reference to the third issue is that a woman is not competent to give away an only son in adoption without express

authority from her husband. The judge observes that in fact the 2nd defendant''s mother who gave him in adoption had her husband''s authority.

There is the plaintiff''s own admission to that effect in E 5 and 6 and there is also the evidence of the 2nd defendant''s maternal uncle. Again, the

question whether such authority is necessary to validate the gift in adoption in Southern India arose in Narayanasami v. Kuppusami, I. L. R 9 M 44

It was held in that case that a widow''s power to give a son in adoption is co-extensive with that of her husband and that no special authority is

needed from him. The Smritis and commentaries which bear on the subject are cited in that decision and it is shown that the conclusion arrived at

by the author of Dattaka Chandrika is, that in the absence of express prohibition from the husband, the widow has the same power to give that he

has.

This brings under our consideration the substantial question in this suit, viz. whether an only son can be given in adoption.

There are several Smritis which forbid such adoption. They are cited in the leading case on the subject, viz. Ghinna Gounden v. Kumara

Gouuden, I. M. H. C. R, 54 Several of them state the reason of the prohibition is the desire to prevent the extinction of the natnrai family or the

failure of funeral offerings to the deceased members of that family. The texts are also referred to in Narainasami v. Kuppusami where the question

arose but was not pressed on the court. In 1862, the question was first considered by the High Court in Ghinna Goundan v. Kumara Goundan. It

was decided in that case that if an only son were adopted, the adoption would be valid: the ground of decision being that the Smritis which forbid it

were only directory and not imperative, and that though the adoption was a sinful act, it was not invalid if it took place. In that case, prior decisions

reaching back to the early part of this century are relied on in support of the decision. The opinions of Sir Thomas Strange and Jagannatga are

mentioned. I may refer to the opinion of Viswanath Narayana Mandlik on the subject. It appears further from I. L. R 9 M 44 that the decision in

1862, was followed in Regular Appeal No. 70 of 1882. In 1886, the appellant''s pleader did not press the point that such adoption was invalid in

view of the course of decisions in the presidency. No case is cited in which such adoption was held in Southern India to be illegal. In this state of

the authorities, I do not think that the question is res integra and I am of opinion that the judge was right in following the course of decisions in this

Presidency for the reason stated by him. The result is I would dismiss the appeal with costs.

Shephard, J.

This is an Appeal against the decree of the District Judge dismissing the suit brought by the plaintiff for a declaration of the invalidity of the

adoption of the defendant Pattabhiramayya by the defendant Ramalakshmamma, who is the childless widow of the last holder of certain estates in

which the plaintiff claims a reversionary interest. Although the judgment against the plaintiff is professedly based on the judge''s opinion with regard

to the question raised by the issue, he expressed an opinion adverse to the plaintiff on the first issue and arguments were addressed to us with

regard to that issue as well as the second. The opinion expressed by the judge is that the plaintiff not being the nearest reversioner cannot maintain

the suit without showing collusion on the part of the intermediate reversioners. If it is meant that refusal on the part of those persons to question the

adoption is not sufficient to justify the plaintiff in suing, I think that the judge is wrong, for it is clear that under those circumstances and without

proof of fraud a reversioner in the plaintiffs position may maintain a suit to protect his reversionary rights. The plaint makes the necessary

allegations and there is evidence to support them.

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On the second issue raising the question of estoppel, I think it is sufficient to say that in my opinion no estoppel arises as against the plaintiff by

reason of the mere fact that he concurred in an adoption which was supposed by all parties concerned to be legal and valid.

The substantial question in the appeal is whether the adoption of and only son is valid according to Hindu Law.

As long ago as 1862 this question was held by this Court to be concluded by authority-- I M. H. C, 58. Since then the question has been

raised again three times and received the same answer I. L. R 11 M 489 and ibid 46). The authority Referred to includes the opinion of Sir

Thomas Strange and Colebrooke and decisions in 1801 and 1817. It is not shown that the current of authority is broken by any single decision in

this Presidency to the contrary.

It is pointed out to us that some doubt seems to have been entertained by the learned judges who took part in the decision of 1884 The

circumstance may perhaps be accounted for by the fact that the Chief Justice had previously when a member of the Allahabad Court expressed an

opinion adverse to that entertained by this Court. (See I. L. R 2 A 169 The fact remains that the current of authority is for this Presidency

unbroken. The present question is by no means the only question of Hindu Law on which the High Courts have maintained different views. On

questions of this class it appears to me pre-eminently desirable not to disturb well settled rules of law. I would therefore decline to treat the

question as an open one and would dismiss the appeal with costs. The point taken with regard to the Pleader''s fee was dealt with at the hearing. I

would decline to interfere with the judge''s discretion.