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PETITIONER: G. APPASWAMI CHETTIAR AND ANR.

       Vs.

RESPONDENT: R. SARANGAPANI CHETTIAR & ORS.

DATE OF JUDGMENT22/03/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH

CITATION:  1978 AIR 1051            1978 SCR  (3) 520  1978 SCC  (3)  55

ACT: Hindu  Law--Power  of  a Hindu  widow  to  adopt-Consent  of sapinedas Consultation with agnates-In capacity of women for independent  decision  Works & Phrases  "Poutral  Pouthrathi Santliathies" whether includes an adopted soil.

HEADNOTE: One  G. Chettiar died leaving a daughter  (defendant-1)  and grand sons of sister (Appellant).  In 1953 the 1st defendant adopted  a son who is the second defendant.  The  appellant, filed  the present suit challenging the adoption by the  1st defendant of the 2nd defendant and alienations of properties by  1st  and 2nd defendants, in favour of the  3rd  and  4th defendants.  The validity of adoption was questioned by  the appellants  on various grounds.  The main ground pressed  in this Court is that there was want of consent of sapindas  of the  husband of the 1st defendant and that the adoption  was made  for  the purpose of depriving the  sapindas  of  their right to pronerty and not on any consideration of  spiritual benefit  to  her husband.  The trial court  found  that  the refusal of the appellants to given their consent to adoption was  improper  and that they had more or less  abused  their fiduciary position.  The High Court found that the  adoption was  true but not valid, since other agnates of  husband  of the  1st  defendant  were not consulted  and  their  consent obtained.   The court left open the construction of Will  of G. Chettiar and the question as to whether the 2nd defendant was  entitled to claim under the Will of G.  Chettiar.   The Court found that the alienation made in favour of defendants 3 and 4 were valid.  On an appeal filed by defendants 1  and 2  to the High Court, the High Court held that the  adoption of the 2nd defendant by the 1st defendant was true and valid but  agreed that the contention of the appellants  that  the 2nd defendant as the adopted son of the 1st defendant  could not  take any bequest under the Will, but as Sethu  Chettiar the adoptive father of the second defendant took the  vested interest under the Will, the defendant 2 will be entitled to that  interest  as the adopted son.  The  challenge  to  the alienation in favour of defendants 3 and 4 Dismissing the appeal HELD : 1. The power of a Hindu widow to adopt  a son to  his husband is well recognised in Hindu law.  When the  adoption

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is authorised by the husband of the widow, the widow’s power is co-extensive with that of her husband.  Equally when  the consent  of  the husband’s kinsmen is obtained  the  widow’s power is co-extensive with that of her husband, [522 F-G] Balusu  Gurulingaswami v. Balusu Ramalak hmamma,  I.L.R.  22 Mad. 398 approved. 2.  The necessity for obtaining the assent of  the  sapindas has  been laid down in Ramnad case, (1868) 12 MIA  397,  442 referred.   The  reason  for requiring  the  assent  of  the sapindas  is  to  see  that the  adopt  on  was  a  bonafide performance  of  the  religious  duty and  not  due  to  any capricious  action  by the widow.  In the case  of  a  joint family  it  is necessary that he widow  should  consult  the elders  in the husband’s family particularly the  father  of the husband.  But when the family is divided the duty of the widow is to consult the agnates of the husband at the  first instance.  If the consent of the nearer agnates is  withheld for capricious reasons she can proceed to consult and obtain the  consent  of  remoter  agnates.   The  appellants   were consulted by defendant No. 1 but they refused their consent. The  first appellant who examined himself as P.W.  1  stated that he withheld his consent because lie was afraid that  he would lose his reversionary right to the estate. it is  also clear  that  the appellant was negotiating a  price  through several persons for giving his consent.  The Trial 521 Court  as  well  as  the High  Court  rightly  came  to  the conclusion that the appellants improperly withheld     their consent to the adoption.  The contention that the widow  was induced by     improper  motive in adopting  negatived  with reference to the statement of the 1st   defendant    stating that she had adopted 2nd defendant for the spiritual benefit of   her husband.  The statement by her under the stress  of the  cross-examination  that she resorted  to  adoption  for putting an end to the troubles by the sapindas which she had in  plenty  would only disclose how bitter she  was  against them. [523 A-B, D-E, G, 524 E, F, G-H, 525E] Kanakaratnanz   v.  Narasimha  Rao,  ILR  (1942)  Mad.   173 approved. Sri Raja Ravu Sri Krishnayya Rao & Anr. v. Raja of Pittapur, (1928) ILR. 51 Mad. 893; Basba Rabidat Singh v. Indar Kumar- (1889) IA 16 Cal. 556 (P.C.) referred to. The  basis for requiring the assent of the sapindas  is  the presumed incapacity of women for independence.  During  the 100  years  society  has advanced  and  the  presumption  of incapacity  of women for independent can no longer be  taken for  granted.  Apart from the Constitutional guarantee  that there  will be no discrimination against any citizen on  the ground of sex, it is clear that women have established  that the presumption of incapacity for independence is no  longer valid.   It is well known that women have  occupied  highest positions  and  proved  themselves  equal  to  men  in   all professions   and   other  avocations.    In   the   changed circumstances therefore the basis for the requirement of the assent  of  kinsmen by a widow due to incapacity  no  longer exists  and,  it  may well be asked  whether  the  sapinda’s assent is any more necessary. [529 B, E-G] The  contention  of the appellants that  ’Puthra  Pouthrathi Santhathies’ does not include an adopted son negatived.   An adopted son is as good as a Puthra for all purposes.  It may be different in case of an illegitimate son. [532 F-H]

JUDGMENT:

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CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2028  of 1968. (From  the Judgment and Decree dt. 21-9-1960 of  the  Madras High Court in Appeal Suit No. 80/60). R.  Thiagrattjan,  K.  Jayaram  &  K.  Ram  Kunar  for   the appellants. S.  Rajagopalan, Sunanda Bhandare & Malini Poduval  for  the respondents. The Judgment of the Court was delivered by KAILASAM,  J.-This  appeal is preferred  by  the  plaintiffs against the judgment of the Division Bench of the High Court of  Madras  on  certificate.  Appellants  are  the  sister’s grandsons  of one Gopalasami Chettiar.  The first  defendant Ramathilakam  Ammal is the daughter ,of Gopalasami  Chettiar and  the  second  defendant the adopted son  of  the.  first defendant  is  the sister’s grandson of  her  husband  Sethu Chettiar.   The  two defendants are respondents 1 and  2  in this appeal.  Defendants 3 and 4 are the alienees of certain properties of Gopalasami Chettiar from respondents 1 and 2. The  suit was filed by the appellants for (1) a  declaration that  the  adoption of the second respondent  by  the  first respondent is not true and valid; (2) declaring that in  any event the second respondent as an adopted son could not take the  estate of Gopalasami Chettiar either under the will  of Gopalasami   or  by  succession;  (3)  a  declaration   that alienations  made by respondents 1 and 2 on  16th  December, 1956 in 522 favour  of  respondents  3  and 4 are  not  binding  on  the reversions of Gopalasami Chettiar and will not enure  beyond the life-time of the first respondent. The  trial  court found that the adoption was true  but  not valid  since  the  agnates of her  husband  namely  Pattalam Ramasami  Chettiar, another Ramasami Chettiar and  Kuppusamy Chettiar were not consulted and their consent obtained.   In view  of  this  finding  the  trial  court  left  open   the construction of will of Gopalasami Chettiar and the question as  to whether second respondent is entitled to claim  under the  will of Gopalasami Chettiar or by way of succession  on intestacy.   The  court found that the  alienation  made  by respondents 1 and 2 in favour of respondents 3 and 4 is  not valid. On  appeal  by respondents 1 and 2 to the  High  Court,  the Court held that the adoption of the second respondent by the first  respondent  was true and valid but  agreed  with  the contention  of the appellants that the second respondent  as the  adopted son of the first respondent could not take  any request  under  the  will.  But  as.   Sethu  Chettiar,  the adoptive  father  of the second respondent,  took  a  vested interest under the will, the respondent will be entitled  to that  interest  as  the adopted son.  The  High  Court  also dismissed the claim of the appellants for any declaration in respect of alienations made by respondents 1 and 2 in favour of  respondents  3  and  4. In the  result  the  High  Court dismissed the suit and hence this appeal before us. The   validity  of  the  adoption  was  questioned  by   the appellants  on    various  grounds.  First  of  all  it  was contended  that Sethu Chettiar, the husband of  Ramathilakam Ammal  had prohibited her from making any adoption  to  him. The  trial court found against this plea of  the  appellants and  the finding was confirmed by the High Court.  The  plea was  not  put forward before us and therefore  need  not  be considered.  The second ground that was taken was  that  the adoption  was not valid for want of consent of the  sapindas of the husband of Ramathilakam Animal, the first respondent.

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The third ground of attack *as that the motive for  adoption by  the widow was improper as the adoption was made for  the purpose of depriving the sapindas of their right to property and  not on any consideration of spiritual, benefit  to  her husband. The power of a Hindu widow to adopt a son ’to her husband is well  recognised  in Hindu law. The widow is  the  surviving half of   the husband and the widow adopts         according to the texts in her own right though the latter view appears to  be that she acts as a delegate or representative of  her husband.  When he adoption is authorised by the husband  the widow’s  power  is, co-extensive with that of  her  husband. Equally,  when  the  consent of  the  husband’s  kinsmen  is obtained the’ widow’s power is co-extensive with that of her husband    (vide    Balusu    Gurulingaswami    v.    Balusu Ramalakshmamma  (1). The power of adoption can be  exercised by the widow alone and nobody can compel her to adopt.  When there is no specific authority by (1) I.L.R. 22 Mad. 398. 523 the  husband her authority is co-terminus with that  of  her husband  subject only to the assent of the sapindas.  It  is not  disputed that the consent of the sapindas is  necessary in  the  absence of the husband’s  authorisation  under  the school of Hindu law to which the parties belong.  The assent of the sapindas cannot be equated with the authority of  the husband  as  the role of the sapindas is  only  advisory  in nature.  The necessity for obtaining the assent of the spin- das has been laid down in the Ramnad(1) case where the court held that "where the authority of her Husband is wanting,  a widow may adopt a Son with the assent of his kindred in  the Dravida  Country".  The reason for requiring the  assent  of the kinsmen is stated by their Lordships as follows               "The assent of kinsmen seems to be required by               reason of the presumed incapacity of women for               independence,  rather  than the  necessity  of               procuring  the  consent  of  all  these  whose               possible  and  reversionary  interest  in  the               estate would be defeated by the adoption." There  should be evidence of the assent of the kinsmen as  s offices  to show that the adoption by the widow was  in  the proper and bona fide performance of a religious duty and not due  to  capricious or corrupt motive.  The reason  for  the rule  requiring  the consent of the sapindas is not  due  to deprivation of proprietary interest of the reversioners  but for  an  assurance that the adoption was a bona  fide  per- formance of the religious duty and not due to any capricious action  by the widow.  In the case of a joint family  it  is necessary  that the widow should consult the elders  in  the husband’s family particularly the father of the husband  who is  her venerable protector, but when the family is  divided the  duty  of  the widow is to consult the  agnates  of  the husband at the first instance.  If the consent by the nearer agnates is withheld for improper reasons she can proceed  to consult and obtain the consent of remoter agnates. The  main ground on which the validity of the  adoption  was questioned by the appellants is that the adoption is invalid due  to  want  of  consent of  the  sapindas  of  the  first respondent’s husband.  This plea found favour with the trial court  though  the High Court did not accept it.   The  High Court  considered  the  matter elaborately  and  found  that requisite  consent  was  obtained.  As  we  agree  with  the reasoning and the conclusion arrived a: by the High Court it is not necessary for us to set out all the facts and reasons for  our  conclusion in detail.  It is sufficient  to  state

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that amongst the relations of the first respondent’s husband the  two  appellants who are’ the brother’s  sons  of  Sethu Chettiar   were  admittedly  consulted  but  refused   their consent.   Pattalam Ramaswami Chettiar is an agnate  removed by three degrees.  Ramasami Chettiar and Kuppusami  Chettlar are two other agnates of Sethu Chettiar. it is mainly on the ground that these three agnates were not consulted that  the trial  court  upheld  the plea of the  appellants  that  the necessary consent from sapindas had (1) (1868) 12M.I.A.397,442. 524 not been obtained.  Pattalam Ramasami Chettiar had  attested the  adoption deed Ex.  B-4 executed immediately  after  the adoption  ceremony  was  over.   The  High  Court  found  on evidence that Pattalam Ramasami Chettiar was present at  the adoption  and attested the adoption deed and concluded  from the  circumstances  that  he as  an  attesting  witness  had knowledge of the purport of the document which he was called upon to attest and therefore it could be reasonably inferred that  he  was a consenting party to  the  transaction.   Re- garding  Ramasami Chattiar and Kuppusamy Chettiar  the  High Court  found after reference to the evidence of one  of  the appellants land P.W. 5 examined on their behalf that the two agnates  were not proved to be dhayadis of  Sethu  Chattiar. The  High  Court  rightly pointed out  that  the  attack  in paragraph  10-C  of the plaint was that the consent  of  the sapindas has not been obtained but there was no reference to the failure to obtain consent of the sapindas of the husband of  the  first respondent.  The High Court has  pointed  out that   Ramasami   Chettiar  and  Kuppusami   Chettiar   were admittedly 3 to 4 degrees removed and that Ramasami Chettiar died about 10 years ago.  There is no whisper in the  plaint about the widow having failed to obtain consent of  Ramasami Chettiar   or  Kuppusami  Chettiar.   The  High  Court   was satisfied that Ramasami Chettiar and Kuppusami Chettiar  are not proved to be the dhayadis of Sethu Chettiar.  The  court also  found  that  on their  own  admission  the  appellants withheld the consent improperly as they did not want to lose the right to property.  The widow had consulted  Govindasami Chettiar"  Govindarajulu  Chettiar,  Devaraju  Chettiar  and Ramasami  Chettiar, the father of the adopted boy, who  were all  cognates of the first respondent’s husband.   The  High Court also found that Devarajulu Chettiar, another  sister’s son of Sethu Chettiar who was examined as D.W.9., had  given his consent.  The trial court has found that the refusal  of the  appellants to give their consent is improper  and  that they  had more or less abused their fiduciary positions  The first  appellant who examined himself as P.W. 1 stated  that he  had withheld his consent because be was afraid  that  he would lose his reversionary right to the estate.  It is also clear  that  the appellant was negotiating a  price  through several  persons for giving his consent.  On the  facts  the trial  court as well as the High Court rightly came  to  the conclusion  that  the appellants improperly  withheld  their consent  to  the  adoption.   On  a  consideration  of   the evidence,  we I agree with the conclusion arrived at by  the High  Court that the ’Widow had consulted all the  necessary sapindas  and  that the withholding of the  consent  by  the appellants was due to improper motives which would not  have the effect of invalidating the adoption. It  was  strongly contended by the learned counsel  for  the appellants that the widow was induced by improper motive  to make the adoption.  It was submitted that the object of  the adoption  was to deprive the reversioners of their right  to property and not for conferring any spiritual benefit on her

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husband  Sethu  Chettiar.   Ramathilakam  Ammal,  the  first respondent, in her evidence admitted that as’ the appellants were  pestering her with litigation and demanding money,  in order  to  put  an end to these troubles.  she  resorted  to adoption. 525 She questioned the advocate whether these troubles would  be dispelled  if  she resorted to adoption and  the  advocate stated  that  the appellants would not be able to  make  any claim  for the property if she adopted and that  she  should live  without anxiety.  In her chief examination she  stated that according to the instructions of the Purohit she made a request to the parents of the boy in the following terms :-               "Give your son in adoption so that my  husband               and I shall attain salvation, so that  funeral               obsequies  shall be performed, and so that  my               family shall be propagated." This  request  was  made to the hearing of  all  the  people assembled.  The adoption deed Ex.  B-4 recites that for  the purpose  that her husband may derive spiritual  benefit  and that  his soul may rest in peace and the  annual  ceremonies and the other vedic rites of herself and her husband may  be performed  properly, and that her husband’s line,age may  be propagated  and perpetuated and that heir be found for  him, she considered it proper to take in adoption to her  husband the   second   respondent.   In  reexamination   the   first respondent  was  questioned about her statement  as  to  the reasons for her adoption and she stated that it was for  the spiritual benefit "paralokasthanam" of her husband that  she had  adopted.   Reading  the  evidence as  a  whole  we  are satisfied  that  the reason for adoption was  for  spiritual benefit  of her husband as seen from her declaration at  the time  of  the  adoption ceremony and  the  recitals  in  the adoption  deed  which  was  prepared  at  the  time  of  the adoption.  The statement by her on the stress of the  cross- examination that she resorted to adoption for putting an end to  the  troubles by the sapindas which she  had  in  plenty would  only disclose how bitter she was against  them.   The evidence  taken as a whole would not justify our  coming  to the  conclusion that the adoption was due to  any  improper motive  by the widow and not for the spiritual  benefit  of her  husband.   The  trial court was of the  view  that  the appellants  were anxious to take money and at the some  time the   first   respondent  was  willing  to  give   but   the negotiations  failed because the parties could not agree  on the exact figure and having regard to the circumstances  the conduct of both the parties is open ’to criticism.  The High Court  did not record any clear finding as to the motive  of the  widow  in making the adoption but observed  that  ,even conceding  that the real motive of the widow in  making  the adoption  was  to create an heir for her husband  after  her demise,  if  that  act incidentally created a  son  for  her husband  far from such act being considered the  consequence of  an,improper motive for making the adoption, it would  be an  altruistic motive with reference to the adoption.   The learned  counsel  questioned the correctness  of  the view taken  by the High Court and submitted that improper  motive of the widow would vitiate the validity of the adoption. The law is well-settled that when there is express authority by  the  husband or when consent of the  sapindas  has  been properly obtained the motive of the widow is irrelevant.  In Kanakaratnam v. Narasimha 16-277SCI/78 526 Rao,(1)it  was  held that when a widow  has  received  valid

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authority to adopt, her motive in making the adoption should be  ignored,  inasmuch  as  the  benefit  conferred  on  her deceased  husband by the adoption is in no way  affected  by her  motives.  The Full Bench of the Madras High  Court  was considering the case in which the widow had valid  authority to  adopt and held that her motive is  entirely  irrelevant. It  proceeded to state "However, spiteful her action may  be towards  others  the  benefit conferred  upon  her  deceased husband  by her action is in no way affected, and  the  fact that she cannot act without authority makes the position all the more clear." The decision leads to the inquiry as to how far the motive is relevant in a case in which the widow  has not got the requisite authority.  In Ramnad case (supra)  it was held that the adoption should not be from capricious  or from  a  corrupt  motive.   Widow’s  motive  in  making  the adoption  is not really a factor for the emphasis in  Ramnad case was regarding the consent of the nearest sapindas.   If such consent had been obtained the motive is irrelevant  and in  the absence of the authority of the husband and  without valid  consent of the sapindas the adoption will be  invalid whatever  her  motive  may be.  In  the  circumstances,  the motive of the widow would not normally be relevant. The relevancy of the motive of the widow became important in a  case in which the nearest sapinda refused his consent  on the  ground that the widow for improper motive  capriciously wanted  to  deprive  him of  his  reversionary  right.   The question arose whether withholding of consent by the sapinda under the circumstances was justified.  In Sri Raja Ravu Sri Krishnayya  Rao and Anr. v. Raja of Pittapur,(2)  the  widow entered into a contract by which it was ’stipulated that the reversioner and the boy to be adopted should settle upon the widow absolutely one-half of her husband’s estate to pay the debts and the widow should be given a maintenance of Rs. 500 a month out of the other half which would belong to the  son On  adoption.  The case was decided by a Full Bench  of  the Madras  High  Court.   Justice Odgers  and  Justice  Jackson (Kumaraswami  Sastri  J. dissenting) held (1)  that  on  the facts  the  agreement  to execute  the  settlement  and  the maintenance deeds was a condition precedent to the making of the adoption; (2) that the motive of the widow in making the adoption was therefore, corrupt; (3) that the plaintiff  was entitled  to  refuse  his consent on  the  ground  that  she capriciously  wanted  to  deprive him  of  his  reversionary right;  (4)  that  on account of  his-  refusal,  which  was proper,’  there  was  no  consent of  the  majority  of  the reversioners, which was: necessary to validate the adoption, and  (5,  that in the Madras Presidency, where a  widow  not having her husband’s authority, can adopt. with the  consent of  her nearest reversioners, entitled to  the  inheritance, the  Court  can  scan (a) whether the widow  in  making  the adoption  is actuated by proper or corrupt motives  and  (b) whether the reversioner’s refusal to consent is proper or is based  upon purely personal grounds.  Kumaraswami Sastri  J. in  his dissenting judgment expressed the view that  on  the facts  of the case, the adoption was valid and  the  widow’s motive in making the adoption was not corrupt.  He expres- (1) I.L.R. (1942) Mad.173 (2)  I.L.R. 51 Mad. 893. 527 sed  the view that the agreement to adopt was long prior  to and  was  independent  of  the  agreement  to  execute   the settlement and the maintenance deeds, and moreover as it  is legally  open  to the widow to stipulate  with  the  natural father  of  the boy to be adopted for her enjoyment  of  her husband’s estate for the full term of her natural life,  her

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agreement to convert such a right into an absolute estate of an  adequate portion is legal, especially if the boy  to  be adopted  is,  as in this case, a major.  The  learned  Judge proceeded to state that though the debts were not binding on the reversioners there was nothing illegal in a  stipulation that the debts which were morally binding on her should  be, discharged  by  some means by the son to  be  adopted.   Re- garding  the  validity of an adoption made by  a  widow  for getting a gain for herself the learned Judge was of the view that  where  an  adoption  is  made  by  a  widow  both   in fulfillment  of her religious duties and also for getting  a gain  for herself, the adoption is valid but  the  agreement for  her personal benefit, if not within the limits  allowed by  raw,  will, be void. In other words, according  to  the learned Judge even if the motive was for getting a gain  for herself the adoption would not be invalid but the  agreement for  her personal benefit if ’not within the limits  allowed by  law will be void.  This decision was taken up in  appeal to the Privy Council and their Lordship of the Privy Council made  certain  observations regarding the relevancy  of  the motive  of  the widow. in making an adoption and  the  views expressed  by  Kumaraswami  Sastri  J.  in  his   dissenting judgment which are material for the present discussion.   It was  contended before the Privy Council that the  widow  did not make the adoption for the benefit of her husband or upon religious  grounds,  but merely in order to get  hold  of  a substantial part of the property.  The Privy Council doubted ’if where the consent of the sapindas has been obtained, the motive  of  the adopting widow is  relevant.   Declining  to decide the question as to the relevancy of the motive of the widow their Lordships observed that they did not consider it necessary  to  decide this question in the present  case  as they  were of the view that there is no ground for  imputing corrupt  motive  to the lady They agreed with  the  view  of Kumaraswami Sastri J. that according to Hindu notions unpaid debts  are regarded as sins. as much in the case of a  woman as  in that of a man and agreed with the learned Judge  when he stated "I do not think that a widow who makes an adoption and stipulates that the adopted son should pay her debts  is doing  anything corruptor immoral".  Further,  referring  to the relevancy of the motive of the widow the Privy  Council’ expressed that it was unnecessary to decide the question  as to  whether Kumaraswami Sastri J. was right in holding  that when  the  adoption’  is made in  fulfillment  of  both  her religious  duty and also for the purpose of getting  a  gain for  herself,  the  adoption  would  be  valid’  while   any arrangement  for  her personal benefit, if  not  within  the limits  actually  allowed  by law,  would  be  void.   While observing the. view expressed by the majority Odgers J.  and Jackson J. that as the’ motive of the widow was a  mercenary one  and  that in itself was sufficient  to  invalidate  the adoption  and therefore the ground of sapinda’s refusal  was justified, did not take into account the religious aspect of adoption  in  the eye of a Hindu widow, left the  matter  at that  by observing that the dictum of Kumaraswami Sastri  J. may require 528 serious  consideration  on a future occasion.   The  learned counsel  for the appellants submitted that the occasion  has now arisen for determination of this important question. The  courts are bound to presume that the act is done  by  a widow  in the proper and bona fide performance of  religious duties and neither capriciously nor from a corrupt  motive,. Ordinarily,  it is presumed that the motive of the widow  in making  an  adoption  is for the  performance  of  religious

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duties.   The question as to whether an improper  motive  on the  part  of the widow in making an adoption  would  invali -date  the adoption has been left open by the Privy  Council in  Sri Krishnayya Rao v. Surya Rao Bahadur Garu,(1) but  it is  significant that the Privy Council hesitated to  dissent from  the  view  expressed by  Kumaraswaini  Sastri  J.  who according to their Lordships was well qualified to speak  on the  matter under discussion.  Kumaraswami Sastri J. in  his dissenting judgment in Sri Raja Ravu Sri Krishnayya Rao  and Anr.  v.  Raja of Pittapur(2) observed that so  far  as  the adoption is concerned, it is a religious sacrament according to Hindu law-givers, like a marriage.  The necessity for the adoption  of  a  son. in the case of  childless  Hindus  is’ insisted upon as an act necessary for their salvation and is looked Upon as very meritorious.  The learned Judge  pointed out  that the Bombay School wherein adoption is looked  upon as  so  meritorious  that the authority of  the  husband  is unnecessary  and  such authority according  to  the  leading commentators  may  be presumed for so meritorious,  an  act. The learned Judge also referred to the decision of the Privy Council  in  Bhasba Rabidat Singh v. Indar  Kumar,(")  where the,,  adoption was questioned on the ground that the  widow agreed with the. natural father that she should retain  the whole  estate  during  her life  time.   The  Privy  Council expressed  its  view  that it did not  render  the  adoption conditional and did not affect the rights of the adopted son but  the  condition would be void without  invalidating  the adoption The learned judge pointed out that secular  motives do  come into play and influence persons in making  adoption and where an adoption is made by a widow both in fullfilment of  her religious duty and also for he purpose of getting  a gain for herself, it seemed to him that the proper thing  is to   hold  that  the  adoption  would  be  valid  while  any arrangement  for  her personal benefit, if  not  within  the limits actually allowed by law, would be void.  Taking  into account  the  religious and the sacramental  view  which  is involved in the act of adoption and the benefits which  the, Hindus  believe in, namely that an adoption of a son in  the case of a childless Hindu is necessary for his salvation and for  performing religious  rites, it will not be  proper  to hold  that improper motive of the widow for  adopting  would invalidate the adoption.  To accept Such a contention  would be to apply modem concepts of law to an ancient  sacramental institution  of adoption.  We do no feel any  hesitation  in accepting  the view propounded by Kumaraswami Sastri  J.  in holding hat the motive of the widow in making an adoption is irrelevant for (1) [1935] 69 M.L.J. 388. (2)  [1928] I.L.R. 51 Mad. 893. (3)  [1839] I.R.L. 16 Cal 556 (P.C.) 529 the  purpose of validating the adoption.  Consequently,  the refusal  of the consent by sapindas on the ground  that  the motive  of the widow is improper would amount to  improperly withholding the consent. We cannot ignore the development that has taken place in the society at large during the space of one hundred years since the  Ramnad  case  (supra) was decided and  50  years  since Kumaraswami  Sastri J. gave expression to his views  on  the matter. The basis for requiring the assent of the sapindas is on the ground of the presumed incapacity of a woman.  According  to the  text of Yagnvalkya in Ch.  I,Verse 85 and in  Ch.   II, Verse  130  it is stated that the father  should  protect  a maiden, husband a married woman and sons their mother as she

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is  not fit for independence.  In Ramnad case  (supra)  this doctrine  was recognised and the Privy Council ruled.   "The assent of his Kinsmen seems to be required by reason of  the presumed  incapacity of women for independence, rather  than the  necessity of procuring the consent of all  these  whose possible  and reversionary interest in the estate  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.  Justice Subbarao, as he then was, summed up the law thus in V. T. S. Chandarashekhara Mudaliar (Died)  & Ors v. Kulandaivelu Mudaliar & Ors,(1) "It will be seen that the reason for the rule is not the possible deprivation of the proprietary interests of the reversioners but the  state of  perpetual tutelage of women, and the consent of  kinsmen was  considered to be an assurance that it was a  bona  fide performance  of a religious duty and a sufficient  guarantee against  any capricious action by the widow in taking a  boy in  adoption."  The basis for the assent of the  kinsmen  by reason of the presumed incapacity of women for  independence seems  to  have  disappeared.   During the  hundred  years society  has advanced and the presumption of  incapacity  of women  for independence can no longer be taken for  granted. "Apart from the Constitutional guarantee that there will  be no discrimination against  any citizen on the ground of sex, it is clear that women have established that the presumption of  incapacity for independence is no longer available.   It is well-known that women have occupied highest positions and have proved themselves equal to men in all professional  and other  avocations.  In the changed  circumstances  therefore the basis for the requirement of the assent of kinsmen by  a widow due to incapacity no longer exists and it may well  be asked  whether the sapinda’s assent is any  more  necessary. Added  to this circumstance is the codification of  personal law  of  the Hindus on several branches of Hindu  law.   The Hindu Marriage Act, 1955 has codified the law on the subject of marriage and divorce.  The Hindu Succession Act, 1956 has codified  the  law relating to  intestate  succession.   The Hindu  Minority and Guardianship Act, 1956 has codified  the law relating to minorities and guardianship among Hindus and the Hindu Adoptions and (1) [1963] (2) S.C.R.440. 530 Maintenance  Act, 1956 has codified the law of adoption  and maintenance.   The codified law has made several changes  in the  law  of  adoption.   With  the-passing  of  the   Hindu Succession Act, 1956, sons and daughters are treated equally in  the  matter  of  succession.   Equality  in  status   is recognised in the matter of adoptions also.  The Hindu Adop- tions  and Maintenance Act, 1956, provides for  adoption  of boys  as well as girls.  Formerly, a woman could adopt  only to  her husband but now she can adopt for herself.  A  widow can now adopt a son or daughter to herself in her own right. No  question  of  divesting of any property  vested  in  any person  arises for under the Succession Act she is  entitled to   take  the  property  absolutely.   Under  the   changed circumstances  therefore  the  questions  of  the  sapinda’s consent or depriving him of his reversionary interest or the motive  of the widow for adoption do not arise.  But  as  in this  case  the  second  respondent  was  adopted  on   10th September, 1953 i.e. three years before the Hindu  Adoptions and Maintenance Act, 1956 came into force, the law that  was applicable before the Act came into force will be applicable to the present case.  Though the Act came into force in 1956

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and  this  adoption  was in 1953 before the  Act  came  into force,   we   have  to  take  into   account   the   changed circumstances particularly disappearance of the basis of the requirement  of sapinda’s assent on the ground  of  presumed incapacity of the women. It may also be noted that the facts of the present case  are different  from the case of Sri Krishnayya Rao V. Surya  Rao Bahadur  Garu (supra) where the widow’ stipulated that  half the  estate  should  be given over  to  her  absolutely  and maintenance provided.  In the present case there has been no stipulation  by the widow for any settlement of property  or maintenance  on her by the adopted son or his  father.   The only ground on which the adoption was attacked was that  the motive  of  the  widow was to deprive the  sapindas  of  the property  and not for the spiritual benefit of the  husband. We  have  already recorded a finding that  the  motive   for adopting  the son was spiritual benefit.  The  circumstance that led to the consideration of the motive of the widow  in the  case referred to namely a provision for  settlement  of half the properties for discharging debts at the time of the adoption does not arise in this case. It was next contended on behalf of the appellants that  even if  the adoption is held to be valid the adopted  son  would not  be  entitled to succeed to the property  of  Gopalasami Chettiar as a legate under the will.  The plea was that  the expression  "Puthra Pouthrathi Santhathies" would mean  only sons  born and would not include an adopted son.   The  will provided  that on the failure of male issue of  Ramathilakam Ammal,  the  first respondent, the estate would  go  to  her female  issue  and on the failure of such female  issue  the estate  would  go  to Sethu Chettiar  and  his  santhathies. Construing the terms of the will, the High Court came to the conclusion  that  the testator could  not  have  intended-an adopted  son of Ramathilakam Ammal to take after her as  her santhathies.   In  this  view  the  High  Court  upheld  the contention  of  the appellants  that-the  second  respondent would  not  be  entitled to succeed as the  adopted  son  of Ramathilakam Ammal 531 under  the will.  But the High Court held in favour  of  the second  respondent on the ground that as Ramathilakam  Ammal did  not  bear any child and as  such  Ramathilakam  Ammal’s father’s estate devolved on her husband and his  santhathies after  the death of Ramathilakam Ammal, the property  vested in  Sethu  Chettiar who under the will was entitled  to  the vested  interest.   In the view that Sethu Chettiar  took  a vested  interest,  the  High Court  found  that  the  second respondent  who  is  the  adopted son  is  entitled  to  the property by devolution. To  consider the question whether the second  respondent  is entitled to inherit as the adopted son of Ramathilakam which claim  Was  negatived  by the High Court  and  the  question whether the High Court was right in its conclusion that  the second  respondent  would be entitled to the legacy  as  the adopted  son of Sethu Chettiar, it is necessary to  set  out the  relevant  parts of the will.  Paragraph 2 of  the  will refers  to  charities specified in List II.   The  charities were to be performed by the testator’s third wife Seshammal and  after her by his daughter Ramathilakam Ammal and  after her  by  her sons and grandsons failing them by  her  female heirs  and  if  they are not available  by  Sethu  Chettiar, husband   of  Ramathilakam  Ammal  and  his  Putra   Pouthra santhathies  permanently  from  generation  to   generation. Immovable   properties  are  described  in  List,  III   and according  to the will after the-lifetime of the third  wife

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Seshammal, the immovable properties specified in List III as well  as  cash and movable properties should  be  taken  and enjoyed  by  Ramathilakam Ammal add after her by  her  Putra Pouthra’  Santhathies, and if they are not in ease,  by  her female descendants and in case they too are not in ease,  by ’his  sister’s  son  Sethu  Chettiar,  the  husband  of  the aforesaid   Ramathilakam   Ammal  and  after  him   by   his santhathies.   According  to  the  terms  of  the  will  the properties are to be enjoyed by Ramathilakam Ammal and after her by her putra pouthra santhathies.  The contention of the learned counsel for the appellants is that the words  "putra poithra  santhathies"  would only include the sons  born  to Rarmathilakam  Ammal and would .not include an adopted  son. Support  for this contention is sought to be derived by  the subsequent  clause in the will which provides that if  putra pouthra   santhathies  are  not  in  esse,  by  her   female descendants.  The High Court accepted the contention holding that if the intention was to include an adopted son it would not  have  been  necessary  to  give  the  estate  to  Sethu Chettiar, the husband of Ramathilakam Ammal.  From this  the High  Court inferred that the intention of the testator  was that after the failure and in the absence of male is-sue the property   is  to  be  succeeded  by  the  daughters  of   1 Ramathilakam  Ammal.  This would indicate that the  property was  to  be  given  to the children  born  of  the  body  of Ramathilakam  Ammal.  We are unable to construe the will  in the  manner in which the High Court has done.  The  words  " putra pouthra santhathies" would indicate son, grandson  and descendants.   We are unable to infer that the word  "Putra" is  confined only to children born of the body  Ramathilakam Ammal. Hindu law has recognised the institution of  adoption and  once  a boy is adopted validly he for all  purposes  is recognised as the son.  We do not see any justification  for excluding an adopted son from the term 532 putra".    Neither  are  we  satisfied  that  the   term   " santhathies" would exclude adopted son and his  descendants. In  Tirupathi Naicker and Anr. v. Venkatasubba  Naicker  and Anr,(1)  a  Bench of the.  Madras High Court held  that  the term "santhathi" is wide enough to include adopted son also. In  Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu  & Anr.  v. Raja Rajeswara Rao & Anr.(2) a Bench of the  Madras High  Court  had  to  consider  the  questions  whether   an illegitimate offspring would fall within the words  "purusha santhathi".   Chief Justice Leach while expressing his  view that   the   words  in  their  widest  sense   would   cover illegitimate  descendants  ’Hi  the  context  it  should  be understood  as excluding illegitimate sons.  In the deed  of settlement  the  fifth  clause provided that  where  a  male member  of  any  of the three branches  should  die  without purusha  santhathi  either  by way of aurasa or  by  way  of adoption,  his  allowance should go to the agnates  who  are nearest to him in his own branch.  The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no doubt in his mind that the  parties only contemplated the right of maintenance being.  conferred upon  aurasa and adopted sons Justice Krishnaswami  Aiyangar in his concurring judgment in dealing with the words purusha santhathi", held that the words, are Sanskrit in origin  but used  in the languages of the Madras Presidency.   The  word "Purusha" is translated as "male" and "santhathi" as "issue, progeny  or  descendants".   By  aurasa  son  it  is   meant "Produced from the breast, born of oneself, or legitimate,". According  to the text of Manu and Yagnavalkya the word  is defined  as son born of lawful wedlock only.   According  to

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Yagnavalkya an aurasa son is he who is produced by a  Dharma Patni (lawfully wedded wife).  The word "Purusha  santhathi" is  wider than aurasa son.  Purusha santhathi  though  would exclude  illegitimate son may include the adopted  son.   In the  context of the settlement deed because both  aurasa  as well  as  adopted son were included, the Bench came  to  the conclusion  that purusha santhathi included both aurasa  and adopted  son.  This case was taken up to the  Privy  Council and  in  LXVIII I.A. p. 181 at page 186  the  Privy  Council agreed  with the High Court and held that both  the  learned Judges  of the High Court have rightly decided that  if  the clause  to  which  the  plaintiffs  make  their  appeal   is considered in the light of its immediate context, it becomes a  clear that as the words are used in this deed, a  man  is said  to  die without purusha santhathi if he  dies  leaving neither  a legitimate nor an adopted son.  Though the  case, does not specifically decide that ’santhathi’ would  include an adopted son it must be noted that the learned Judges   of the High Court expressed their view that the word  santhathi used   in   its  widest  sense  would   cover   illegitimate descendants  also.  Whatever may be the  position  regarding illegitimate  children, we are of the view that  an  adopted son  cannot be excluded from the words "purusha  santhathi"’ though an adopted son may not rank as an aurasa son. The   learned  counsel  for  the  appellants   referred   to V.S.Apte’s  Students’ Sanskrit English Dictionary where  the meaning of the word (1)  [1928] XXVIII Law Weekly p. 819. (2)  [1939] 1 M.L.J. 831. 533 "Santhathi"  is given at page 582 as off  spring’  progeny". The  learned counsel also referred to the 10th Skandam,  2nd part, 61st Chapter of Srimad Bhagavatham and submitted  that the  term  "putra pouthradhi santhathi" would  include  only children  born  of the body.  We are unable to  accept  this contention  and to read the passages cited as  excluding  an adopted  son.  Further, neither the dictionary  meaning  nor the passage in Srimad Bhagavatham can be accepted as  laying down  principles  of Hindu law.  We are satisfied  that  the term  putra  pouthra  santhathies" cannot  be  construed  as confined  to sons, grandsons and their descendants born  out of  the body excluding the adopted son or  his  descendants. The  High Court in our view, was in error in coming  to  the conclusion  that  the second respondent is not  entitled  to take  the  properties under the will as the adopted  son  of Ramathilakam Ammal, the first respondent. The view of the High Court that the second respondent  would succeed to Sethu Chettiar as his adopted son is Tight but as we have, held that the second respondent would succeed under the  earlier  clause of the will which provides  that  after Ramathilakam  Ammal her "putra pouthra  santhathies"  resort need  not be had to the subsequent clause in the will  which provides  for  Sethu Chettiar the  husband  of  Ramathilakam Ammal and his descendants taking the property.  In our  view as  the second respondent being the adopted son not only  of Ramathilakam  Ammal but also of her husband Sethu  Chettiar, his rights as the adopted son of Ramathilakam Ammal as  well as  Sethu  Chettiar  cannot be denied.  On  the  failure  of Ramathilakam  Ammal not having putra pouthra santhathies  or female  descendants  the property would be  taken  by  Sethu Chettiar land his santhathies.  The fact that Sethu Chettiar died  during  the lifetime of Ramathilakam Ammal  would  not affect   the   vesting  in  favour   of   Sethu   Chettiar’s santhathies. The  learned counsel for the respondents submitted  that  in

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any  event the appellants cannot succeed as after-the  Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal bad, would ripen into an absolute  estate under Act 30 of 1956.  This contention was rightly  rejected by the  High Court as the life estate to which  Ramathilakam Ammal  was  entitled was under the will of  her  father  and therefore section 14 (2) of the Act would be applicable  and the  life  estate  would not be enlarged  into  an  absolute estate. As  we  have held that the adoption is valid  and  that  the second  respondent  is  entitled  to  take  the  estate   of Gopalasami  Chettiar under the will the appellants  are  not entitled  to any declaration in respect of  the  alienations made by respondents 1. and 2 in favour of respondents 3  and 4  as they are not entitled to any interest in  the  proper- ties. 534 The  result is that the appeal falls.  Taking  into  account the  circumstances  of the case, we direct that  each  party will  bear his own costs in this Court.  As the  appeal  was filed  in forma pauperis and as they have failed,  they  are directed to pay the court fees leviable in the Memorandum of appeal. P.H.P.                       Appeal dismissed. 535