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PETITIONER: TAHSIL NAIDU & ANR.

       Vs.

RESPONDENT: KULLA NAIDU & ORS.

DATE OF JUDGMENT: 18/09/1969

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA HEGDE, K.S. RAY, A.N.

CITATION:  1970 AIR 1673            1970 SCR  (2) 499  1970 SCC  (3) 658

ACT:     Hindu    Law--Adoption   by   widow,   with    sapindas’ consent--Principles  applicable--Nearest sapinda,  woman--If her consent necessary to validate adoption.

HEADNOTE: A  Hindu widow in the Dravida country, who had no  authority from her husband to adopt, adopted a son with the consent of two out of three her nearest male sapindas in 1955.  The two sapindas  gave  their  written consent in  response  to  her letters asking for their consent wherein-she stated that the object  of  the  adoption  was  the  proper  performance  of ceremonies for the benefit of her husband and his ancestors. They  also  signed  the adoption deed  which  mentioned  the purpose  of  the   adoption.  The widow,  however,  did  not obtain  the  consent of her husband’s grandmother,  who  was nearer in degree than these two sapindas. On the question of the validity of the adoption,     HELD:  (1) The validity of an adoption has to be  judged by spiritual rather than temporal considerations.  But, in a case where the  widow makes an adoption after obtaining  her sapindas’  consent,  her motive need not  be  inquired  into because,  the  very fact that the sapindas had  given  their consent was a guarantee that the adoption was being made for proper reasons. [505 G-H]     (2)  It is only when a sapinda refuses consent  that  it becomes relevant to see whether the refusal was justified on the  ground  that the adoption was not for  proper  objects. Where  a  sapinda  gives consent, the  very  fact  that  the consent was given implies that the adoption ’was  considered desirable  and  was  being  resorted to  by  the  widow  for spiritual considerations. [509 C--E]     In  the  present case, the consenting  sapindas  had  no personal motives in giving the consent, spiritual benefit of her  husband was in fact one of the considerations  for  the widow  making the adoption, and the sapindas had not  merely an implied but express knowledge that the adoption was being resorted  to  by  the widow  for  spiritual  considerations. Though  one  of  them was not examined  as  a  witness,  his consent letter was proved by a witness in whose presence  he

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signed the letter. [508 A-B; 510 A-B]     (3 ) The consent of the majority of the nearest sapindas would be sufficient to satisfy the requirement that a  widow should consult the nearest sapindas.  Therefore, the consent given  by  two  out  of three  equally  near  sapindas,  was sufficient to support the adoption. [508 G-H]     (4)  The consent of a sapinda for adoption by  a  widow, who  has no authority from her husband, was  required  under Hindu  law,  because,  a woman is  considered  incapable  of exercising  independent  judgment  in the  matter.   In  the present case if the grandmother of the deceased husband were to  desire to adopt a son herself would have to  obtain  the consent  of  her sapindas in the absence  of  her  husband’s authority, because of her incapacity to exercise independent judgment:  and  it would follow that she could hardly  be  a competent adviser to another widow, namely, her grand- 500 son’s  widow  on the same matter.  Therefore,  even  if  she happens  to  be  the  nearest  sapinda  there  could  be  no requirement that her consent must be obtained for validating the adoption. [511 E-F; G-H; 512 B]     (5) The reference in The Collector of Madura. v.  Mootoo Ramalinga Sethupatty, 12 M.I.A. 397, to ’kindred or kinsmen, whose  consent  is  to be obtained by a widow  for  a  valid adoption,  is  to male  agnates  only.  In  that  case,  the opinion  of the mother-in-law regarding the adoption by  her daughter-in-daw  was  considered important by  the  Judicial Committee  only because of the special authority granted  to the mother-in-law by her son and not because, in every case, the  consent  of a mother-in-law was necessary  to  make  an adoption  by the daughter-in-law valid, or that her  consent must  be  obtained  on the ground that she  is  the  nearest Kindred alive. [512 F; 513 B-C; 514 H]     V.T.S.   Chandrasekhara  Mudaliar   v.   Kulandai   Velu Mudaliar  [1963] 2 S.C.R. 4,40, followed.     Raghanadha  v.  Brojo Kishoro, [1876] LR.  3  I.A.  154, Veera  Basavaraju v. Balasurya Prasada Rao, [1918]  L.R.  45 I.A.   265  and  Ghanta  China  Ramasubbayya   v.   Maparthi Chenchuramayya, L.R. 74 I.A. 162, applied. Varadamma  v.  Kanchi Santkara Reddi A.I.R. 1957  A.P.  933, approved.     Observations  Contra in Rajah Damara Kumara   Venkatappa Nayanim Bahadur Varu v. Damara Renga Rao I.L.R. 39 Mad.  772 and  Maharajah Kolhapur v.S. Sundaram Avyar, I.L.R. 48  Mad. 1, 204, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1795 of 1966.     Appeal from the judgment and decree dated March 1,  1962 of the Madras High Court in Appeals Nos. 66 and 166 of 1958.     S.T. Desai, B. Datta,, K. Jayaram, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.     A.  K.  Sen,  T.V. Balakrishnan ’and  Naunit  Lal,   for respon dents Nos. 1 and 2. R. Gopalakrishnan, for respondents Nos. 5, 7 and 8. The Judgment of the Court was delivered by     Bhargava,  J.   This  appeal arises out of  a  suit  for partition instituted by the two appellants claiming a  share in the joint Hindu family property as successors-in-interest of one Kothandaraman alias Kumarasami Naidu who died in  the year   1943.   When  Kothandaraman  died,  he,  his   father Rangappa  Naidu, his uncle Ramasami Naidu, and the  latter’s son  Kullan alias Kumaraswami formed a Joint  Hindu  family.

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Kothandaram  died leaving his widow Nagarathinammal who  was plaintiff No. 2 and is appellant No. 2 in this appeal.   His father  Rangappa  Naidu was also alive, but he died  in  the year 1944.  On the death ’of Rangappa Naidu, Ramasami Naidu, his  brother, ’became the ’karta’ of the joint family  which included his son, Kullan alias Kumaraswami, 501      and  plaintiff  No.  2,  the  widow  of  Kothandaraman. Ramaswami     Naidu  executed  a will  on  11th  July,  1949 bequeathing  portions.   of the joint family  properties  to various  members  of the family,  because he was  in  actual possession of all the properties.  Subsequently, in the same year  1949,  Ramasami Naidu died.  Some  of  the  properties were  transferred by persons who took’ possession    of  the properties  in accordance with the will of  Ramasami  Naidu. Then,  according to plaintiff No. 2, she, on  26th  January, 1955,   adopted plaintiff No. 1, Tahsil Naidu, as a son  and partition of    the property was claimed on the basis  that, after  his  adoption,  Tahsil Naidu was entitled to  a  half share  in  the properties of the    joint  family.   It  was further urged that the will made by Ramasami Naidu was  void and  ineffective,  and  that the various  transfers  of  the properties  were also not binding on him.  The suit      was instituted  by the two plaintiffs because defendant  No.  1, Kullan   alias   Kumaraswami  Naidu,  who  was   under   the guardianship  of  his  mother  Jayammal,  defendant  No.  2, refused  to recognise the adoption, challenged its  validity and  did  not accede to the request to give a share  in  the property to the plaintiffs.  The-  main question that  arose in  the  suit  for  decision was  whether  the  adoption  of plaintiff No.2 by  plaintiff No. 2 was  valid.     It was the admitted case of the parties that Kothandaram had   died  without  giving  any  authority  to   his   wife Nagarathinammal to adopt a son.  The claim on behalf-of  the plaintiffs  was that, even in the absence of authority  from her  husband,  plaintiff No. 2 was entitled to adopt  a  son after  obtaining the consent of the nearest sapindas of  her husband  The case put forward was that she gave a notice  to Jayammal  and  Kullan  minor to give their  consent  to  the adoption  of plaintiff No. 1 who was the son  of  Damodaran, brother  of plaintiff No. 2, and who was further the son  of the  real sister of Kothandaraman. However, without  waiting for  any  consent being given by jayammal, plaintiff  No.  2 proceeded  with the adoption after obtaining consent of  the next three nearest Sapindas, Rangappa Naidu, Devarajalu  and Umavadan alias Rangan. Though, at the first stage, there was some  dispute about the pedigree, by the time the case  came up  before the High Court the pedigree, which was set up  on behalf  of  the appellants in the plaint,  was  accepted  as correct.  According  to that  pedigree,  when  Kothandaraman died,  and  even when the adoption took  place,  his  grand- mother Ammakutti Ammal  was also alive.  She, in fact,  died after the  institution of the  suit.  Apart from her, Kullan and  Jayammal, the nearest Sapindas of Kothandaraman at  the time  of  adoption  were  Rangappa  Naidu,  Devarajalu   and Umavadan.   The  plaintiffs  therefore,  claimed  that   the adoption  was made with their consent as,  under  the  Hindu Law applicable in Madras, it was not necessary to obtain the consent: 502 either of the minor Kullan, or of the two females  Jayammal, widow of Ramasami Naidu, and Ammakutti Ammal, grandmother of Kothandaraman.     The  suit  was  resisted on  behalf  of  the  defendants challenging  the  validity of the adoption on  two  grounds.

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The  first  ground  was that, in fact, the  consent  to  the adoption  was  not obtained from  Rangappa,  Devarajalu  and Umavadan as pleaded on behalf of the plaintiffs and, in  any case, if the consent was obtained, it was not properly given by   those  Sapindas  after  exercising  their   independent judgment  as  required,  so  that.  the  consent  could  not validate   the  adoption.   The  second  ground  was   that, admittedly,    Ammakutti   Ammal,   the    grandmother    of Kothandaraman,  was also a Sapinda and nearer in  degree  to the  three persons consulted.  Since her consent. was  never obtained, the adoption must be held to have been resorted to without  the  consent  of  the  nearest  sapinda  and   was, consequently, invalid.     The  trial Court held that the adoption was  valid,  and consequently,  granted a preliminary decree  for  partition. The High Court of Madras, in appeal, differed from the trial Court.   On  the  first question, the  High  Court  did  not express  a  definite opinion in its judgment  and  contended itself  with stating that it is probable that  the  adoption was  thought  of  by plaintiff No. 2 more with  an  idea  of getting  the properties than being  actuated by  a   genuine religious motive and, further, that it was  doubtful whether the  plaintiffs had succeeded in proving that  the  adoption was  made with the consent of the three  sapindas,  Rangappa Naidu,  Devarajalu  and  Umavadan.   On  the  second  point, however,  the  High Court accepted the plea put  forward  on behalf  of  the  defendants that it was  necessary  for  the adoption to be valid  that the consent  of Ammakutti  Ammal, the grand-mother of Kothandaraman, should have been obtained even  though  she  was a female  Sapinda.   The  High  Court repelled the contention of the plaintiffs-appellants that it was  not necessary to obtain the consent of female  sapindas for  a  valid  adoption and that  Hindu  law  only  requires consent  of  the nearest male sapindas.  On this  view,  the High  Court allowed the appeal, set aside the decree  passed by the trial Court and dismissed the suit of the plaintiffs. Consequently,  the plaintiffs have come up to this Court  in this   appeal  by  certificate  under  Art.  13  3  of   the Constitution.     On  the first point, Mr. S.T. Desai appearing on  behalf of  the  appellants, drew our attention to the  decision  of this Court in V. T.S. Chandarasekhara Mudaliar and others v. Kulandaivelu Mudaliar and others(1) which appears to be  the only  case in which this Court had occasion to lay down  the principles which (1) [1963] 2 S. C, R. 440. 503 applied to adoption in Madras.  The Court, ,in dealing  with that  case,  reviewed  the various decisions  given  by  the Madras  High Court and the Privy Council and  indicated  the principles that must be applied when, judging the effect  of consent of sapindas on the validity of an adoption.  In that case,  a conditional consent had been given; by some of  the sapindas, whereas some others had refused to give consent to the  adoption,  and  the  controversy  centered  round,  the question  whether the consent given by some and refusal  by’ others was proper.  The Court indicated that such a question depended for its solution on the answer to five interrelated questions which were formulated as follows :--                        (1)  what  is  the  source  and   the               content of the power               of the widow to adopt a boy ?               (2) What is the object of adoption ?                     (3) Why’ is the condition of consent  of               the  sapindas for an adoption .required  under

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             the  Hindu law for its validity                      (4)What  is the scope of ’the power  of               the sapindas to give consent to an adoption by               a widow and the manner of its exercise ? and                   (5) What are the relevant circumstances  a               sapinda has to bear in mind in exercising  his               power to give consent to an adoption ? The  Court took into consideration the decisions  till  then rendered   which  had  bearing  on  these   questions   and, consequently,  we  do not consider it at  all  necessary  to again  discuss all those cases. On the first  question,  the Court held that a widow, either authorised by her husband to take a boy in adoption, or after obtaining the assent of the sapindas, has full discretion to make an adoption, or not to make  it, and that discretion is absolute and  uncontrolled. She  is  not  bound to make an adoption and  she  cannot  be compelled  to do so.  But, if .she chooses to take a boy  in adoption,  she acts as a delegate or representative  of  her husband  and  her  discretion  in  making  the  adoption  is strictly conditioned by the terms of the authority conferred on  her by her husband; but, in the absence of any  specific authority, her power to take a boy in adoption is coterminus with that of her husband, subject only to the assent of  the sapindas.   Dealing with the next question, the  Court  held that  it may safely be held on the basis of the  authorities that  the  validity  of  an adoption has  to  be  judged  by spiritual  rather  than  temporal  considerations  and  that devolution    of    property   is    only    of    secondary importance.  It is’ the answer to the third and  the  fourth questions  with  which we are primarily concerned.   On  the third question, the Court 504 held  that the reason for the rule of obtaining  consent  of the  sapindas  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.  Dealing with the fourth question,  the  Court quoted  with approval the observations of Raiamannar,  C.J., in  Venkatarayudu v.  Sashamma(1)  to         the  following effect :-                   "As  Mayne  (Hindu  law,  tenth   Edition)               remarks pages 221 and 222 it is very difficult               to conceive of   a case, where a refusal by  a               sapinda  can  be  upheld    as  proper.   ’The               practical     result   of   the    authorities               therefore  appears  to  be  that  a  sapinda’s               refusal   to  an    adoption  can  seldom   be               justified.’  It may be that in a   case  where               the   sapinda  refused  his  consent  to   the               adoption  of a boy on the ground that the  boy               was  disqualified,  say,  on  the  ground   of               leprosy  or  idiocy,  the  refusal  would   be               proper.   In this case, we have no  hesitation               in holding that the refusal by the  plaintiffs               on the   ground that the proposed boy was  not               a  sapinda  Or  sagotra or  a  gnati  was  not               proper." Ultimately, the Court summarised its decision as follows :-                   "The  power  of  a  sapinda  to  give  his               consent  to  an   adoption by  a  widow  is  a               fiduciary  power.  It is implicit in the  said               power that he must exercise it objectively and

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             honestly   and   give  his  opinion   on   the               advisability  or  otherwise  of  the  proposed               adoption  in  and    with  reference  to   the               widow’s branch of the family.  As   the object               of adoption by a widow is two-fold, name   by,               (1)  to secure the performance of the  funeral               rites   of the person to whom the adoption  is                             made  as  well    as to Offer  pindas  to  that               person   and  his  ancestors   and    (2)   to               preserve  the continuance of his  lineage,  he               must    address himself  to ascertain  whether               the proposed   adoption promotes the said  two               objects.    It   is   true     that   temporal               consideration, though secondary in importance,               cannot   be  eschewed  completely  but   those               considerations must necessarily be only  those               connected    with that branch of  the  widow’s               family.   The sapinda   may  consider  whether               the proposed adoption is in the   interest  of               the well-being of the widow or conducive    to               the better management of her husband’s estate.               But    considerations’ such as the  protection               of the sapindas’               (1) A.I.R. [1949] Mad. 745.               505               inheritance  would  be  extraneouS,  for  they               pertain  to the self-interest of  the  sapinda               rather  than the well-being of the  widow  and               her  branch of the family.  The sapindas,   as               guardians  and  protectors of the  widow,  can               object to the adoption, if the boy is  legally               disqualified  to  be  adopted  or  if  he   is               mentally defective or otherwise unsuitable for               adoption.  It is not possible to lay down  any               inflexible  rule or standard for the  guidance               of  the  sapinda.  The Court which  is  called               upon to consider the propriety or otherwise of               a sapinda’s refusal to consent to the adoption               has   to  take  into  consideration  all   the               aforesaid relevant  facts  and such others and               to  come to its decision on the facts of  each               case." It is these principles which we are called upon to apply  in the  present case to decide how far the requirements  for  a valid adoption have been  satisfied  when  plaintiff  No.  2 adopted  plaintiff No. 1. When  this aspect of the case was being discussed in  Court, learned  counsel appearing for the respondents  put  forward the  argument that, in the present case, the evidence  shows that  the motive of the widow, plaintiff No. 2, or,  in  any case,  her  dominant motive in making the adoption;  was  to ensure that a half share in the property of the family comes into  the  possession of herself and her adopted  son,   and that   the  adoption  was  not  made  with   any   spiritual considerations or for the performance of any religious duty. Learned counsel,  thus,  wanted  to  challenge the motive of plaintiff  No. 2 in adopting plaintiff No. 1. On  the  other side, the argument was that, once the consent of the nearest sapindas  is obtained by a widow before making an  adoption, the  question  of motive of the widow  making  the  adoption becomes  irrelevant  and should not be inquired  into.   The principles  laid down in the case cited above show that  the consent of a kinsman was considered to be an assurance  that the adoption was in pursuance of a bona fide performance  of

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religious  duty and would be a sufficient guarantee  against any  capricious  action by the widow in taking  the  boy  in adoption.   This  principle laid by this Court,  thus,  does indicate  that  the motive of a widow need not  be  enquired into,  because the very fact of the consent being  given  by the sapindas is a guarantee that the adoption is being  made for proper’ reasons.  In the present case, however, we  find that,  even on facts, the submission made on behalf  of  the respondents cannot be accepted, because there is evidence to show that the adoption was made by plaintiff No. 2 with  the object  of proper performance of ceremonies for the  benefit of   her  deceased  husband  and  other  ancestors,   though plaintiff 506 No.  2  also  had in mind the advantage  she  would  receive because  her  own  adopted son would obtain  rights  to  the property and she may be better looked after.  The  intention of the widow, in making the adoption, was clearly  expressed by her in ’the notice Ext. A-2 sent on 6th December, 1954 by her  counsel  to  defendant.No.  2  Jayammal  who  was  .the guardian  of defendant No. 1, Kurta Naidu, the latter  being the person who was then holding the family property.  It was stated  in  that notice "that my client is very  anxious  to adopt  a  son  to   her  husband  Kothandarama  Naidu  alias Kumarasami  Naidu  for  securing a good  son  to   her  late husband   performing  his  ceremonies   offering   oblations perpetuating  the progeny (Line) and to save the soul of  my client’s  husband  from what is known as ’Puth  Narakam’  ". Similar expression of her intention is contained in  another letter Ext. A-4 which was sent by the Advocate on her behalf to  one  of the Sapindas, Devarajulu Naidu, asking  for  his consent to the adoptions.  It has also come in evidence that letters  similar  to the one sent to Devarajulu  Naidu  were also  sent to the other two nearest Sapindas Rangappa  Naidu and Umavadan in order to obtain their consent.  In addition, even  in  Court, plaintiff No. 2 appeared as a  witness  and stated on oath that "the adoption was to my husband and  for perpetuating  and to do the ceremonies".  It was  argued  on behalf   of   the  respondents  that,  even   though   these expressions of the reason for adoption by the widow exist in the  documents  and  in oral  evidence,  the  further  facts elicited show that her dominant motive was in fact to obtain possession  of  property  and  that  the  consideration   of spiritual benefit to her husband did not exist.  It is  true that,  in cross-examination, some facts have  been  elicited which  indicate  that considerations  relating  to  material benefit also existed when plaintiff No 2 decided to make the adoption.  She herself admitted that the subject of adoption was broached to her about a year before the adoption by  one Ethirajulu  Naidu  who said that, if she adopted a  boy,  he would  get  the  property  and  she  could  depend  on   it. According  to  her,  the same person  advised  her  to  take plaintiff  No. 1 in adoption.  Even the  consenting  sapinda Rangappa,  who  appeared as a witness,  admitted  in  cross- examination  that  the second plaintiff had no one  to  feed her,  and her relatives did not call her; and that  was  the reason why she made’ the adoption. These answers elicited in cross-examination do not, however, in our opinion, show that the   question  of  spiritual  benefit  or  performance   of religious  ceremonies was not one of the  considerations  in making  the adoption.  In fact, on the evidence, it  appears that Rangappa Naidu, when he gave his consent, had been told why  plaintiff No. 2 was going to make the adoption  in  the written  letter sent to him; and it seems that  his  consent was  given  in  view  of  that  consideration,  though,   in

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addition, as he has stated on oath, 507 he  also took into account the fact of material  benefit  to plaintiff No. 2.     This  takes  us to the crucial point  whether,  in  this case,  the  consent  of the sapindas that  was  obtained  by plaintiff No. 2 before adopting plaintiff No. 1 was a proper consent  which  would validate the adoption.  Of  the  three consenting sapindas, Rangappa Naidu was the only one who was examined   in   court   and  he   clearly   stated   m   his examination-in-chief that he gave his consent    in  writing vide  letter  Ext. 7-A.  He added that  printed  invitations were  issued  in his name and he and his  cousin  Devarajulu were  present  at  the adoption.  A  deed  of  adoption  was written  and        executed  and  he  and  Devarajulu  both attested  it.   He also definitely stated that  he  made  no profit  at  all out of this adoption, nor was he  given  any promise that he would get any property by giving his consent to  the  adoption.   To  challenge  this  evidence,  learned counsel  for the respondents drew our attention to  some  of the  statements made in cross-examination.  Rangappa  Naidu, when  questioned, seems to have admitted that he signed  the letter of consent at the place of adoption, even though  his consent  letter  Ext. A-7 purports to have  been  sent  much earlier  than  the date of adoption.  It seems to  us  that, being  an old man of 80 years of age, he had some  confusion in   his  mind  about  making  the  signatures  on   various documents.   In  his examination-in--chief, he  has  clearly stated  that he had signed the deed of adoption at the  time of  adoption  and  it means that,  when  cross-examined,  he became  confused  and gave his answer under  the  impression that deed of adoption was also the consent letter signed  by him.    In  our  opinion,  the  statement  made  in   cross- examination  that  he signed the letter of  consent  at  the place  of  adoption  was really intended  to  refer  to  his signatures on the deed of adoption which signatures he  must have  made  after  expressing  again  his  consent  to   the adoption.  That  his  mind was  confused  appears  from  the further  circumstance  that he stated  in  cross-examination that the name of the boy to be adopted was not mentioned  in the invitation issued in his name, though, in fact, the name is actually mentioned.  We are, therefore, unable to  accept the  submission made on behalf of the respondents  that  the consent  of Rangappa Naidu has not been properly  proved  in this case.     Apart from the consent of Rangappa Naidu, the plaintiffs also  relied on the fact that consent was also given by  the only  other  two  equally  remote  sapindas  Devarajulu  and Umavadan.  The High Court, in its judgment, appears to  have held  that  the  consent of these  persons  was  not  proved satisfactorily by the plaintiffs, though the trial Court had taken  the  contrary view.  It is true that, in  this  case, Devarajulu  and  Umavadan  were not  examined.  The  consent letters signed were, however, put on the file.  Deva Sup. CI/70--2 508 rajulu’s  signature  on  the consent letter  was  proved  by Damodaran  Naidu who obtained the letter of consent and  who is  the natural father of plaintiff No. 1.  Damodaran  Naidu clearly  proved that this letter was signed in his  presence by Devarajulu.  The High Court expressed the view that  this consent  letter cannot be taken to be proved on  the  ground that  Devarajulu himself was not examined as a witness,  and incorrectly ignored the fact that the document was proved by the  evidence  of  Damodaran  Naidu.   Reference,  in   this

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connection, was also made to the statement of plaintiff  No. 2  herself that she had obtained the consent  of  Devarajulu about a month before she went to the Vakil for advice  about adoption  and that she did not take the consent from him  in writing.  The  fact  that she did  not  herself  obtain  the written consent from Devarajulu does not., however,  detract from  the value to be attached to the written consent  which was  obtained by her brother Damodaran and not  by  herself. No  doubt,  there are some petty discrepancies  between  the evidence  of these witnesses, but we do not think that  they are of such a nature as would justify our disbelieving them. In  our opinion, the consent of Devarajulu to  the  adoption was also properly established.     In  the  case  of  Umavadan,  of  course,  there  is   a discrepancy that, according to plaintiff No. 2 herself,  she obtained  his  consent when she met him 10  days  after  the adoption, though the consent letter by him purports to  have been  signed earlier. This admission was made  by  plaintiff No.  2  in  her  cross-examination, and,  in  view  of  this admission, we do not think we will be justified in differing from the decision of the High Court that Umavadan’s  consent has not been properly established.  In this case, there  was also some argument as to his capacity to give consent.   The case  seems  to have been put forward that he was  deaf  and dumb and, consequently, incapable of giving evidence, though plaintiff  No.  2 herself in her  cross-examination  made  a qualification that Umavadan could hear, though he was  dumb. It  also appears that he can write and make  his  signature. It is possible that he may have given his consent in writing when asked orally or in writing, because he could both  hear and  read;  but,  as we have said earlier, in  view  of  the admission  of plaintiff No. 2 that she obtained his  consent 10  days after the adoption, we must disregard  the  consent given  by  him.   Thus, the adoption  is  supported  by  the consent given by two out of three equally near sapindas.     The  effect  of  this  consent  was  challenged  on  two grounds.  One  was  that  t, he  consent  should  have  been obtained  from  all the’ three and not merely two.   In  our opinion, the consent of the majority would be sufficient  to satisfy the requirement that a widow, in making the adoption should consult the nearest sapin- 509 das.  It is not essential that the consent should have  been obtained from all the three, particularly when Umavadan  was at least partially incapacitated as being dumb.     The second ground, on which the value of the consent  by these sapindas was challenged, was that no evidence has been produced  to show that, when giving their consent, they  had consciously  applied their mind to the question whether  the widow  was  making  the adoption for the  performance  of  a religious  duty or for spiritual benefit to the  husband  of the adoptive mother and his ancestors.  As we have indicated earlier,  out of the two consenting sapindas, only  Rangappa Naidu  has  been examined and, in his evidence, he  has  not made any such specific statement.  That, in our opinion,  is not  very material, because, as the principles laid down  in various cases show, the very fact that consent is given by a sapinda  implies that the adoption is  considered  desirable and  is  being resorted to by the widow  for  spiritual  and religious  considerations   and not out  of  caprice.  Every sapinda  knows  that,  as  soon  as  an  adoption  is  made, spiritual  benefit will accrue to the deceased  husband  and that  the existence of the adopted son will  perpetuate  his line.  Such consciousness is implied in giving the  consent. It  is only when the consent is being refused by  a  sapinda

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that  it  becomes relevant to see whether  the  refusal  was justified on the ground that the adoption was not being made with  such objects.  The mere omission of counsel in  asking Rangappa  Naidu  whether he had considered the  question  of spiritual  benefit  at the time of  giving  consent  cannot, therefore,  imply  that  the consent  was  given  for  other considerations.  A consent would,  no doubt, be of no  value for validating an adoption if the person giving the  consent has his own personal motives.  In the present case, Rangappa Naidu  clearly stated that he was not to get any benefit  at all out of the adoption of plaintiff No. 1 by plaintiff  No. 2.  There is also, however, the further fact that, according to  the evidence, letters were sent to both  Rangappa  Naidu and  Devarajulu Naidu in which the reason for  adoption  was expressed  by the counsel for plaintiff No. 2.  As  we  have noticed earlier, they gave their written consent in response to  those letters, and it can be presumed that  the  consent was  given in view of the object indicated in those  letters asking   for   their  consent.   There   is    the   further circumstance that, according to the evidence, both  Rangappa Naidu and Devarajulu were present at the adoption and signed the  adoption   deed.   They   are   both   literate.    The adoption deed clearly mentions the purpose of adoption which is  the proper purpose for a widow in making  the  adoption; and  it  would not be unjustified to infer that  both  these persons had consented to the adoption again at that time  in view of the object men- 510 tioned  in the deed of adoption.  On facts also,  therefore, it  appears  to be justified to hold that  the  consent  was given by these two sapindas for proper reasons and the  fact that they had given their consent would ensure the  validity of the adoption. On  the  second question, one aspect that  has  Considerable bearing is the reason which led the law-givers in the  Hindu law  to insist on the right of a widow to adopt a son  being contingent  either on conferment of authority on her by  her husband, or, in the absence of such authority, on the assent of the nearest sapindas.  This question was also  considered to  some  extent  by  this Court  in  the  case  of  V.T.S.. Chandarasekhara   Mudaliar(1)  where  the  Court  began   by noticing  that the basis for the doctrine of consent may  be discovered in the well-known text of Vasishta:     "Let   not   a  woman  give  or  accept  a   son  except with the assent of her Lord." The  Court  then  also quoted two texts  of  Yagnavalkya  in Chapter  1, verse 85 and in Chapter 2, verse 130  which  are ordinarily relied upon to sustain the said doctrine:                   "Let  her  father protect  a  maiden;  her               husband a married woman; sons in old age;   if               none of these, other gratis (kinsmen).  She is               not fit  for  independence."                   "He  whom  his father or mother  gives  in               adoption is Dattaka (a son given)." After  noticing briefly the summary of the evolution of  the law by subsequent commentators, the Court proceeded to  hold that  the said, doctrine is mainly rounded on the  state  of perpetual tutelage assigned to women by Hindu law  expressed so tersely and clearly in the well-known text of Yagnavalkya in  Chapter 1, verse 85, quoted above.  The Court then  took notice  of the decision in The Collector of Madura v.  Moots Ramalinga  Sathupathy & Connected Cases(2) (popularly  known as, and  hereinafter referred to as, the ’Ramnad Case’)  and referring  to  it as the leading decision  approved  of  the observations  of Sir James William Colvile who made  a  real

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contribution to the development of this aspect of Hindu  law which were to the following effect:                   "But they (the opinions of Pandits) show a               considerable  concurrence of opinion,  to  the               effect  that,  where  the  authority  of   her               Husband is wanting, a Widow may               (1) [1963,] 2 S.C.R. 440.       (2) 12  M.I.A.               397.               511               adopt a Son with the assent of his kindred  in               the Dravida Country."               The  Court also indicated that the reason  for               this rule was clearly stated in that  judgment               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               those whose possible and reversionary interest               in  the  estate  would  be  defeated  by   the               adoption." In Veera Basavaraju and Others v. Balasurya Prasada  Rao   & Another(1), their Lordships of the Privy Council  reiterated the  observations  made in the case of Raghanadha  v.  Brojo Kishoro(2) to the following effect :--                   "But  it  is impossible not  to  see  that               there  are grave social objections  to  making               the  succession of property-and it may  be  in               the  case of collateral succession, as in  the               present  instance,  the rights of  parties  in               actual possession--dependent on the caprice of               a   woman,  subject  to  all  the   pernicious               influences  which interested advisers are  too               apt in India to exert over women possessed of,               or   capable  of  exercising  dominion   over,               property." Thus,  the entire case-law on the subject clearly  indicates that  the requirement for consent of a sapinda for  adoption by  a widow who has not obtained the consent of her  husband in his lifetime was laid down, because Hindu law considers a woman incapable of independent judgment and proceeds on  the basis  that  a  woman  is likely  to  be  easily  misled  by undesirable  advisers.   This aspect, in  our  opinion,  has considerable bearing on the question whether a widow  making an  adoption must or need not obtain the consent of  another senior woman in the family who is herself a widow.     It  seems  to  us  that, if  a  woman  is  incapable  of exercising  independent judgment in the matter  of  deciding whether she should adopt a son to her deceased husband,  she can  hardly be a competent adviser to another widow  on  the same  matter.   In  the present case, for  example,  if  the grand-mother  Ammakutti were to decide to adopt a  son,  she would have to obtain consent of Sapin das in the absence  of authority  from  her deceased husband and  that  requirement would   arise   because  of  her  incapacity   to   exercise independent judgment.  If she cannot exercise an independent judgment  in  the matter of making an adoption  herself,  it would  follow  that  she would not be able  to  exercise  an independent (1) [1918] L. R. 45 I. A. 265. (2) [1876] L.R. 3 I.A. 154. 512 judgment  to advise plaintiff No. 2, her grandmother  widow. The  advice  of a person incapable of  independent  judgment would hardly ensure that the adoption to be made by a  widow

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is proper and justified.  On the principles thus  recognised in  Hindu  law, it would be justified to hold that  a  Hindu widow,   even  if  she happens to be the nearest sapinda  to the  widow  seeking  to make the adoption, would  not  be  a competent  adviser  and,  consequently,  there  can  be   no requirement that her consent must be obtained for validating the   adoption.   The  principles  clearly  point   to   the conclusion  that  the  consent must  be  obtained  from  the nearest male sapinda.     Learned  counsel  appearing  for  the  respondents,   in support  of  the  decision  of  the  High  Court,  drew  our attention  to the decision of their Lordships of  the  Privy Council in Ramnad Case where it was held :--                   "Upon the whole, then, their Lordships are               of  opinion that there is enough  of  positive               authority  to  warrant the  proposition  that,               according to the law prevalent in the  Dravada               Country,  and particularly in that part of  it               wherein  the  Ramnad zamindary is  situate,  a               Hindoo   Widow,  not  having   her   husband’s               permission,  may,  if duly authorised  by  his               kindred, adopt a son to him." He emphasised the fact that, in laying down this  principle, the  word  used  was  "kindred"  without  any  qualification whether the kindred should be a male or female. Reliance was also  placed  on  the fact that, in  that  case,  the  Privy Council  held  the adoption made by the widow to  be  valid, inter  alia,  on  the ground that the consent  of  a  senior female  kindred had been obtained.  In that case, the  widow had  adopted  a son with the consent  of  distant  agnate--a samanodaka--who was the natural male protector of the  widow in the absence of nearer male relations, as well as with the consent  of  the mother-in-law and other  persons  who  were proved beyond all question to have assented to the adoption. This  second aspect of the decision of the Privy Council  in attaching  value  to the consent of the  mother-in  law  for purposes  of holding the adoption to be valid was,  however, based on the peculiar facts and circumstances of that  case. Their   Lordships   found   that   the   mother-in-law   was unquestionably  the heir to the property next in  succession to the widow who was making the adoption, and the mother-in- law  had  been  specifically.  nominated   by  the  deceased husband to look after his widow.  He had addressed. a letter to the ColleCtor, of ,the District in which he  specifically stated  that he had made arrangement that ’his  mother,  Who was  his guardian in every respect, and who had  held  chief right to the 513 zamindary, was to enjoy the zamindary and all other  things; was to pay poishkist to the Cirkar, and was to maintain  his royal  wife, his daughter, and her younger sister,  a  small child;  when the children grew up and attained  proper  age, she was to make an arrangement with regard to their right to the  zamindary,  and  continue  the  same.  In  that   case, therefore, it is clear that the opinion of the mother-in-law was  considered  of  some importance by  the  Privy  Council because  of  this special authority granted to  her  by  the husband of the widow in his own life-time.  The case  cannot be  taken as deciding that, in every case, the consent of  a mother-in-law would be competent to make an adoption  valid, or that, in order to make a valid adoption, her consent must be  obtained on the ground that she is the  nearest  kindred alive.     On  this  aspect  of  the  Ramnad  Case,  in  order   to strengthen  his  argument,  learned counsel  referred  to  a

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decision  of the Madras High Court in Rajah  Damara   Kumara Venkatappa  Nayanim Bahadur Varu v. Darnara Renga Rao(1)  in which  it   was   held that an adoption by  a  junior  widow without  the consent of the senior widow was bad  and  could not  be held to be valid.  It was argued by the  counsel  in that case that the senior widow was entitled to be consulted as  one  of the kindred, while, on the other  side,  it  was argued  that a widow is not a sapinda but only  succeeds  as one  of  the enumerated heirs.  Wallis,  C.J.,   in   giving his decision, said :--                "I do not think it necessary to go into  this               question,   but having regard to the  decision               of their Lordships    in Ramnad Case that  the               assent of the mother-in-law    Mothuveroyee in               that  case was operative in support of     the               adoption,  I should be disposed to  hold  that               the  senior     widow was one of  the  kinsmen               whom it was the duty of    the junior widow to               consult  and that the adoption was    bad  for               failing to consult her." We are unable to accept the view expressed by Wallis,  C.J., that  the  principle laid down in Ramnad Case  justified  an inference that it was necessary to obtain the consent of the nearest  sapinda if she happened to be a widow.  It is  true that, in the Ramnad Case, the adoption made by the widow was held to be valid, after attaching some weight to the opinion of the mother-in-law, but that was primarily because she had been  given  a special position by the writing left  by  the widow’s husband when addressing his letter to the Collector. Another.  point  to be kept in view  when  considering  this Madras decision is  that  it is a well-recognised  principle in Hindu law that, if there are two widows, the senior widow has the preferential right to make an adoption; and it may’ (1) I.L.R. 39 Mad. 772. 514 be  a  good consideration, when judging the validity  of  an adoption by a junior widow, to see whether she did so  after obtaining the consent of the senior widow whose preferential right would thus be defeated.     A similar interpretation of the Ramnad Cose was accepted in another decision of the Madras High  Court  in   Maharaja Kolhapur v.S. Sundaram Ayyar and 15 Others(1) where it   was held that the consent of the Queen-mother was sufficient  in Hindu  law to validate the adoption made by the widow  Rani, her   daughter-in-law.    In  arriving  at  this   decision, Kumaraswami Sastri, J., held :--                   "It  is clear from the decision  of  their               Lordships   of  the  Privy  Council   in   The               Collector   of  Modura  v.  Mootoo   Ramalinga               Sathupathy  (Ramnad Case) that the consent  of               Avu  Bai Saheba, the mother of  Sivaii,  would               validate  the adoption in the absence  of  any               other Sapindas." That  case, again, had a special feature of its  own,  viz., that the Court found that there were no sapindas, except Avu Bai Saheba in existence.  It was held that, if there was  no male  sapinda  at all, it would be wrong to  hold  that  the widow would not be capable of making an adoption at all  and it was for this reason that it was held that the consent  of the  female sapinda, viz., the mother-in-law was  sufficient to validate the adoption.     This interpretation of the decision of the Privy Council in  the Ramnad Case cannot, however, be accepted as  correct in  view  of the subsequent decisions by the  Privy  Council itself  where the interpretation put  was   different.   Mr.

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Ameer  Ali, speaking for the Judicial Committee, in the case of Veera Basavaraju(2), said :--                   "The    Ramnad   Case    established   the               proposition  that,  in  the  Dravada  Country,               under  the Dravadian branch of the  Mitakshara               law   there  in  force,  in  the  absence   of               authority  from her deceased husband  a  widow               may  adopt a son with the assent of  his  male               agnates." In  that  case,  thus,  the  Privy  Council  held  that  the reference  to  kindred or kinsmen,  whose consent is  to  be obtained by a widow for a valid adoption, in Ramnad Case was intended to cover male agnates only. In an other  subsequent case  of  Ghanta China Ramasubbayya &  Another  v.  Moparthi Chenchuramayya, (1) I.L.R. 48 Mad. 1,204.      (2) [1918] L.R. 45 I.A. 265. 515 Minor,  and  Others(1), the Privy Council referred  to  this decision  of Mr. Ameer Ali, and, after quoting  the  extract reproduced by us above, held :--                   "The words ’kindred and kinsmen’, words of               general significance, used in the Ramnad case,               are  here interpreted to mean  ’male  agnates’               and this interpretation is amply borne out  by               the  facts  of that case  as  already  stated.               Similar  expressions  appearing in  the  other               cases should also be similarly interpreted." Thus,  the  interpretation  placed on the  decision  in  the Ramnad  Case by Mr. Ameer Ali in Veera Basavaraju’s  case(2) was   further affirmed by the Privy Council in  this  latest case  of  Ghanta China Ramasubbayya(1).  In view  of   these decisions   of  the Privy Council, we do not think  that  we can accept the interpretation put on the decision in  Ramnad Case  in  the judgments of the Madras High  Court.   On  the other  hand,  the correct interpretation of  that  case  was further  followed by the High Court of Andhra Pradesh in  K. Varadamma v. Kanchi Sankara  Reddi & Others(a).     It  was urged by learned counsel that the two  decisions of the Privy Council in the case of Veera Basavaraju(a)  and Ghanta  China  RamasubbaYYa(1) were not concerned  with  the question  whether it is necessary to obtain the  consent  of the nearest female sapinda or not.  In the former case,  the adoption had been made with the assent of the remote sapinda without  the consent of the nearest sapinda.  In the  latter case, the question was whether the consent of the daughter’s son,  who would, under Hindu law, be a preferential heir  to the  deceased  husband,  was  necessary  when  consent   was obtained  from  a sapinda who, in the order  of  succession, would  come after the daughter’s son. It was urged that  the Privy Council in neither of these two cases was called  upon to   pronounce  on  the  question  whether,  by  using   the expression  "kindred  or  kinsmen" in Ramnad  Case,  it  was intended  to refer to male agnates only, or to  all  agnates whether  male  or female.  Even though this is  correct,  we consider  that  the  subsequent interpretation  put  on  the decision  in  Ramnad Case in these decisions  by  the  Privy Council  is  entitled to great weight.   Further,  the  view expressed in these decisions bears out our opinion which  we formed  on  the basis of the position  given to a  woman  in Hindu  law as a person incapable of  exercising  independent judgment.   Consequently, we must hold that the  High  Court was wrong in holding the adoption of plaintiff   (1)  L.R. 74. I.A. 162.           (2) [1918] L.R. 45  I.A. 265 (3)  A.I.R. 1957 A.P. 933.

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516 No. 1 by plaintiff No,. 2 in the present case as invalid and the decision of the High Court must be set aside.     As a result, we set aside the decision given by the High Court.   The  case will now go back to the  High  Court  for deciding  other  issues which were in  dispute  before  that Court  and which the High Court left  undecided  because  of its  view   that  the  suit of  the  plaintiffs  had  to  be dismissed on the ground that the adoption of plaintiff No. 1 by  plaintiff No. 2 was  invalid. The costs of  this  appeal shall be payable by the respondents to the appellants. V.P.S. Appeal allowed and case remanded 517