JUDGMENT
Seshagiri Aiyar, J.
1. The plaintiffs sue as reversioners of one Narasamma to recover possession of the plaint properties. The last male owner was Venkatasubbiah, a boy of 14 years. He was murdered in 1888. Two brothers of the 2nd and 4th plaintiffs were suspected of this murder. They were convicted by the Sessions Court; but acquitted in appeal. On Venkatasubbiah’s death, his mother Narasamma inherited the properties. She died in 1908.
2. The 1st defendant is the adopted son of Narasamma. Although the factum of adoption was denied in the Court of First Instance, the finding of the Subordinate Judge that the adoption did in fact take place has not been questioned in appeal. The 2nd defendant is an alienee from the adopted son. She is the daughter of the 3rd defendant and grand daughter of Narasamma. The case for the defendants is that the adoption of the 1st defendant by Narasamma is valid.
3. There are questions both of fact and of law to be considered in deciding whether the adoption was validly made. It is clear that Narasamma made strenuous efforts to obtain the permission of her Sapindas to adopt a son. She took the advice of Mr. Pundarikakshadu, a leading Vakil of Masulipatam. As a result of his advice she obtained Ex. I, giving her authority to adopt a boy, from 14 persons who were her sapindas. At this time, there were six persons who were entitled to succeed to the property of her son, in case she did not make an adoption. Of the six only one signed Ex. I. The other signatories to Ex. I, though gnatis, were not the next reversioners. The geneological tree printed in the Judgment shows that counting from the common ancestor Seshadri, almost all of them were heads of the various branches into which Seshadri’s descendants had ramified. The main question which was argued related to the sufficiency of the consent obtained under Ex. I. Mr. Rangachariar contended that all the nearest reversioners were asked to give their consent, but that they refused to accede to the request from improper motives.
4. We are not satisfied on the evidence that this is made out. It has to be remembered that when Mr. Pundarikakshadu’s advice was sought, there were observations in Venkata Krishnamma v. Annapurnamma (1899) I.L.R. 23 M. 486 to the effect that in seeking the consent of the gnatis nearness of relationship need not be considered. The advice which the vakil gave was apparently with reference to this dictum. Moreover there is evidence that 5 out of the 6 nearest reversioners were not on friendly terms with the widow. Two of them were brothers of the men who were suspected of the murder of Venkatasubbiah. The third was one of the persons suspected. The 4th and the 5th were close friends of the other three. Their attitude was one of hostility to the widow. Under those circumstances, it is unlikely that they would have been asked to give their consent with reference to the state of law then regarded as correct. The fact that a meeting was thought of shows that what Narasamma and her advisers had in view was a general family council without reference to nearness of relationship. The evidence adduced shows that the defendants wanted to strengthen their position with reference to the observations of Benson and Bashiyam Aiyangar, JJ. in Subramanyam v. Venkamma (1903) I.L.R. 26 M. 627.
5. Reliance was placed on the deposition of plaintiff’s witness No. 29, the daughter of Narasamma and the 3rd defendant in this. Before the adoption, there was an arrangement between Narasamma on the one hand, and the 1st defendant and his natural father on the other, by which a good portion of the deceased’s property was left at the absolute disposal of Narasamma (See Ex. II). Two weeks after this arrangement, the 1st defendant and Narasamma made a gift of most of the properties obtained under Ex. II to the 2nd defendant (Ex. III). This 2nd defendant is the daughter of the 3rd defendant. Under these circumstances, it is extraordinary that this lady should have been examined as a witness on the side of the plaintiffs. Notwithstanding the condemnation by the Judicial Committee of the practice of calling the opponent as one’s own witness, the parties and pleaders in the Mofussal courts do not seem to realise the seriousness of the step they are taking. Naturally, advantage was taken by defendants Nos. 1 and 2 of the presence of the 3rd defendant in the witness box to elicit statements to the effect that plaintiffs Nos. I to 4 were consulted prior to the execution of Ex. I. Having regard to her evident bias in the case, much importance cannot be attached to her evidence. We have to see whether there is other independent and reliable evidence to support her testimony. D.W. 4 is altogether unreliable. He has tiled his schedule in insolvency. It is this witness who is said to have brought plaintiffs Nos. 1 to 4 to the meeting. His story is on the face of it improbable. The Subordinate Judge does not believe him and we see no reason to differ from him. Defence witness No, 1 is the writer of Ex. I. He was Narasamma’s clerk and is now under the defendants. We do not differ from the Lower Court in its estimate of this man’s credibility. These are the principal witnesses on whom reliance is placed. Defence witnesses Nos. 5 to 11 also speak to the meeting and the consultation. As against this evidence, we hive the evidence of P.W. 8, P.W. 1 and P.W. 21. We concur with the Subordinate Judge in holding that the defendants have not proved either that plaintiffs 1 to 4 were present at the meeting of the gnatis or that they were consulted regarding the adoption.
6. Mr. Rangachariar argued that even on this finding the adoption is valid. The learned Vakil’s contention is that the Hindu Law does not require that the immediate reversioners should be consulted. All that need be shown, according to him, is that the majority of the gnatis had assented to the adoption. Before dealing with the case law on the point, it should be mentioned that the foundation for the theory of the assent of the sapindas is a verse in Yagnavalkya’s Smrithi which says:
j{ksr~ dU;ka firk foUuka ifr% iq=kLrq ok/kZds A
vHkkos Kkr;Lrs”kka u LokrU=;a ôfpafRj=;k%
AA
7. “Let a female be taken care of by her father while a maiden, by her husband when married, and by her sons in old age. If none of these exists let other gnatis take care of her. A woman is never fit for independence.” The idea underlying this passage is that a woman should have the advice and assistance of men in her conduct of temporal affairs and should not act of her own accord. The learned Vakil laid much stress upon the religious significance of an adoption. It is true that the motives which ought to guide the widow in making an adoption should be to minister to the spiritual wants of her deceased husband. It does not follow from this that the assent of the sapindas should be regarded as a religious act. Yagnavalkya’s text implies that it is protection in temporal affairs that is contemplated. Consequently, it is not right to argue that the guardianship of the widow who has no son should vest in the entire body of gnatis. The natural interpretation of the text is that she is dependent on the advice of those nearest to her husband. This is apparent by the interpretation which the Viramitrodya places on it:
e`rsrq rfLeu~ ;RikjrU=;a rnuqefrjsokisf{krk A
,oa lfr }”VkFkZrk Hkofr izfr”ks?kL; A
8. “But when the husband is dead, the assent of those only is necessary, on whom she is dependent. In this view, the object of the prohibition becomes reasonable.” The word “only” would be meaningless, if the consent of the entire body of gnatis is contemplated.
9. As regards decided cases Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 442, was most relied upon by the appellant. Their Lordships of the Judicial Committee no doubt say that as women are presumed to be incapable of acting themselves, the authority of the kindred is necessary. At the same time, they say that the consent of the mother-in-law and of a Samanodaka was enough. This view proceeds on the theory that the assent of the immediate guardian of the adopter would make up for the incapacity. This coincides with the view enunciated by the author of Viramitrodya. In Sri. Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo (1876) I.L.R. 1 M. 69, the Judicial Committee differed from the dictum of Holloway, J., that the assent of a remote sapinda will validate the adoption and point out that in an undivided family, the consent must be sought from the members of the family alone. This again shows that the text of Yagnavalkya should be understood as limiting the expression ‘gnatis’ to those who are in the line of heirs to the last owner. It is in Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) I.L.R. 1 M. 174 that the expression ‘by what may be called a family Council’ is first introduced. In that judgment all the sapindas had given their consent. But it was contended that the widow in obtaining the consent did not act on spiritual considerations. In negativing this plea, the Judicial Committee say that the consideration which should guide both the widow and the sapindas ‘is the expediency of substituting an heir by adoption to the deceased husband.’ The expression ‘family council’ was not intended to suggest that all the available sapindas should be asked to sit in conclave and decide the question. In Parasara Bhattar v. Rangaraja Bhattar (1880) I.L.R. 2 M. 202, Sir Charles Turner and Innes, reviewed all the previous authorities on the question of the sapindas’ consent. The learned Judges say : ‘without the express or implied authority of the husband such a second adoption could be made only under the sanction of the nearest sapindas’. This is a clear pronouncement on the nature of the sapinda sanction. Venkatakrishnamma v. Annapurnamma (1899) I.L.R. 23 M. 486 contains certain observations on which the appellant naturally relies. On the facts found that case presents no difficulty. Three out of the four nearest sapindas gave their consent to the adoption. The fourth man who held out contested the adoption on the ground that his refusal rendered the adoption invalid. The learned Judges over ruled this plea. They held that the assent of the majority of the nearest sapindas was sufficient.
10. Subramania Aiyar, J. further went on to say “It should at the same time, be borne in mind that a mere numerical majority, whether in favour of or against an adoption, will not by itself determine the question. Adoption being a proper act it will be presumed that when the majority give their assent such assent was given on bona fide ground. If, however, it be shown that the majority give or withhold their assent from improper considerations, such assent or dissent will be of no avail to the party relying on it. If the above view is correct it would further follow that any distinction, based upon the degree of relationship, as the whole assent is or is not essential becomes immaterial.” We are unable to see how the conclusion in the last sentence follows from the proposition stated in the preceding sentence. In an earlier passage, the learned Judge, stated “Now, even in the case of an undivided family, when a widow of a member thereof makes an adoption without the authority of her husband or the assent of her father-in-law, it cannot be taken to be the settled law that the assent of all the then surviving members of the co-parcenary is absolutely necessary.” “If the consent of all co-parceners in a joint family is not necessary, a fortiori the consent of all sapindas in divided branches is unnecessary.” “We do not think that the learned Judge intended to lay down that the consent must be sought from Sapindas of every grade in divided families. Benson and Bashiyam Aiyangar, JJ. in Subramanyam v. Venkamma (1903) I.L.R. 26 M. 627 lay down the law in explicit terms after a careful examination of all the previous authorities. The learned Judges say “The expression ‘family council’ in the above extract is no doubt rather too general and comprehensive. It is not probable that it was intended to include the whole circle of Sapindas and Samanodakas or to imply that they should assemble. The presumptive reversionary heir or heirs are the nearest of kin to the deceased husband and as such the natural advisers of the widow; and if his or their assent be obtained and the same be given bona fide and not from any corrupt motive, that would be sufficient authority on which she could act, and it would not be necessary that she should seek the assent of remoter reversionary heirs.” We entirely agree with this statement of the law. This decision was affirmed by the Judicial Committee in Venkamma v. Subramaniyam (1907) I.L.R. 30 M. 50, and it is clear that their Lordships proceeded on the same lines as did the Judges of this Court. The observation of the learned Judges who made the remand order in Suryanarayana v. Venkataramana (1903) I.L.R. 26 M. 681, that there is no authority for the position that the, assent must be that of the nearest Sapindas is not correct as Parasara Bhattar v. Ranga Bhattar (1880) I.L.R. 2 M. 202, does lay down that proposition. The actual decision on the return of the finding was based on other grounds. In Veera Basavaraju v. Balsurya Prasada Rao (1914) M.W.N. 502, the nearest reversioner was not consulted. The sentence “she made no such bona fide effort to take the opinion of the Sapindas or a majority of them as the law requires,” does not mean that the (consent of the) majority of all remote reversioners should be obtained. These are all the authorities on the subject. We are of opinion that as the assent is regarded as a substitute for the authority of the husband and as the Hindu Law enjoins that such an assent should be obtained from those who would be the natural advisers and protectors of the widow, prima facie, it should be sought from those who are next in the line of succession. There is no direct authority which holds that where there are hear Sapindas, the adoption is invalid, if the remoter ones are not consulted. It would introduce an inconvenient and unworkable principle, if it were held that in a large family the assent of the majority of persons who are capable of giving their consent should be obtained. Mr. Rangachariar felt the difficulty and suggested that the assent of all persons observing 10 days’ pollution would be enough. This suggestion is opposed to Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397, 442 where a Somanodaka is mentioned as being competent to give Consent. No general principle applicable to all cases can be laid down. Where the nearest Sapindas are a sufficiently large number as in this case, it is unreasonable to contend that they should be ignored, and that the widow is entitled to apply to persons more remote. Where there are only one or two near Sapindas who from improper motives withhold their consent, it may be open to the widow to apply to more remote Sapindas. We are clearly of opinion that it was the duty of Narasamma to have applied to the plaintiffs in this case for their consent and as we have found that that has not been done we hold that the adoption is invalid. We cannot accede to the contention that as the plaintiffs would surely have refused to give their consent as they were inimical to her, that Narasammah was justified in not consulting them. As was pointed out in Subramanyam v. Yenkamma (1903) I.L.R. 26 M. 627 and Venkammma v. Subramanyam (1907) I.L.R. 30 M. 50, it was her duty to have asked their permission. She has no right to conclude on a priori reasoning that the consultation would prove futile.
11. Another contention against the validity of the adoption was raised by Mr. S. Srinivasa Aiyangar. The consent under Ex. I was obtained in 1901. The actual adoption was in 1908. The learned Vakil for the respondent argued that the authority had spent itself out by such a long delay.
12. There is no doubt that at the time of the adoption some of the signatories to Ex. I were dead. It was said that 4 out of the 14 had died. In Mami v. Subbarayar (1911) I.L.R. 36 M. 145 it was held that lapse of time was a bar to acting on the authority See also Veera Basavaraju v. Balasurya Prasada Rao (1914) M.W.N. 502 and Nagarampalli Kamesam v. Nagarampalli Butchamma (1914) M.W.N. 620. It is not necessary for us in this case to decide whether the authority loses force by the mere lapse of time. Courts will be justified in scanning with care an adoption which purports to be based on an authority given many years before the event. In the result we agree with the Subordinate Judge in holding that the 1st defendant was not validly adopted and that the alienations made by him and Narasamma are not binding on the plaintiffs. The appeal is dismissed with costs.
John Wallis, Kt., C.J.
13. I agree.
In Appeal No. 95 of 1912.
14. We allow the appeal as to items 10, 27 and 28 of Schedule B and item 71, 1-60 acres of item 72 and item 74 of Schedule A. as the evidence on behalf of the 3rd defendant appears to establish her right to these items. The appeal is allowed as to these items and is otherwise dismissed, The appellant will pay proportionate costs of this appeal throughout.
In Appeal No. 180 of 1912.
15. We agree with the Subordinate Judge as to the items in Schedule B included in this appeal and as regards the 3rd defendant we dismiss the appeal with costs. As regards Schedule C we allow the plaint to be amendedly including a prayer for possession on payment of the necessary court-fees in both Courts. As to this, the appeal is allowed and the decree will be varied by giving a decree to the plaintiffs for joint possession with defendants Nos. 4 and 6, but the appellant must pay the costs of the 4th and 6th defendants here and below. The memorandum of objections is dismissed.
