JUDGMENT
Subrahmania Aiydr, J.
1. The dispute in this case relates to the validity of the 2nd defendant’s adoption by the 1st defendant, the widow of one Lakshminarasu, the adoption having been made after she had succeeded to the estate of her son, who died unmarried, and with the assent of three out of four of Lakshminarasu’s sapindas who were divided and existing at the date of the adoption.
2. The Lower Courts upheld the adoption, being satisfied that there was nothing in the circumstances in which the adoption took place and the sapindas assented, to show that the widow and those sapindas acted otherwise than properly and bona fide in the matter.
3. The present appeal was preferred by the sapinda (since deceased and hereinafter referred to as the appellant) who did not assent to the adoption and who stood in the same degree of relationship to Lakshminarasu as those who gave their assent. In support of the view urged on his behalf that the adoption was, invalid, the argument was as follows:The assent of all the sapindas existing at the time of the adoption being essential, the non-assent of one of them, the appellant, rendered the adoption invalid. Even assuming that the assent of every sapinda is not required by law, the degree of relationship to the husband of the adopting widow must determine whose assent is essential, and where all the sapindas are of the same degree of relationship, then the assent, of all is necessary. At any rate the appellant’s refusal to give his consent must be shown by the defendants to have been influenced by improper considerations.
4. 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. No doubt, in the Ramnad Case, The Collector of Madura v. Moothoo Ramalinga (1868) 12 M.I.A. 397, 442 the Privy Council say that the consent of all would probably be necessary. But the tenor of their Lordships’ observations shows that they were not expressing a decided opinion on the point. Be this as it may, there can be no doubt that in a case like the present where an adoption is made by a widow of a divided man, and the assent to be obtained is that of sapindas divided from him and from each other, the assent of every existing sapinda is not a sine qua non. This was expressly stated by the Privy Council in the Ramnad Case at p. 442 of the report, and from the observations made later on in the same page, it would seem to follow that when a majority of the sapindas give their assent to the adoption, such assent will be sufficient. That seems also to have been the view of Sir Charles Turner, C.J., and Innes, J., in Parasara Bhattar v. Rangaraja Bhattar (1880) I.L.E., 2 M., 202 cited for the appellant, where they say, “The Ramnad Case perhaps decided no more than that an adoption was valid when the assent of the majority of the sapindas was accorded, see Arundadiammal v. Kuppu Ammal (1867) 3 M.H.C.R. 283. but it has never been decided that an adoption is absolutely invalid by reason of the consent of less than the entire body of sapindas having been obtained to it,” 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 grounds. 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. If the above view is correct, it would further follow that any distinction based upon the degree of relationship, as to whose assent is or is not essential, becomes immaterial.
5. The question, then, that remains is whether the defendants were bound to show that the appellant’s refusal was due to improper considerations. On the contrary, ‘ft would follow from what was stated above that it would be for the appellant to establish that the assent of the sapindas who consented to the adoption was not given bona fide But Parasara Bhattar v. Rangaraja Bhattar L.E., 4 I.A. 2 at p. 14 already referred to, was relied on as an authority in favour of the appellant’s contention. The point actually decided by that case, in so far as we are here concerned, would seem to be that when the reasons for a sapinda’s refusal to consent are expressed at the time the consent is sought and are impaoper, The sapinda cannot rely on such refusals affecting the validity of the adoption made with the assent of others properly given. Supposing, however, that the observations in that case really go further, still they cannot be held to help the appellant having regard to the peculiar circumstances appearing here. Now the objection under discussion not having been raised in the Lower Courts,the reasons which induced the appellant to withhold his assent have not been investigated or considered by the Lower Courts; nor does it appear that the appellant either at the time he was asked to assent or subsequently, communicated to the first defendant what the reasons for his refusal were. And throughout these proceedings also, he has failed to allege why he did not give his assent. In such circumstances, it is difficult to understand what burden of proof lay on the 2nd defendant in the matter. Of course, the reason why a sapinda refuses to assent is peculiarly within his own knowledge, and the widow seeking the assent cannot compel the person declining to give it to disclose the reasons for the course he adopts. Consequently, she as well as the person adopted by her must in a case like this be held completely absolved from the duty of proving what they might be obliged to establish in cases where ‘the grounds for the refusal to assent are duly made known. And it would seem only reasonable to say that when a sapinda refuses to assent but withholds his grounds for such refusal, he must be held to be precluded from relying on the refusal as in any way affecting the adoption. The propriety of this view will be clearer still if we remember the reason of the rule which compels a widow, desirous of making an adoption but possessing no authority from her husband in regard to it, to obtain the assent of his sapindas. The reason is the presumed incapacity of women for independent action in such a matter. And, as the position of the sapindas in cases like this is according to the Judicial Committee, similar to that of a family council that has to decide upon the expediency of substituting an heir by adoption to the deceased husband on a fair consideration or the question, Venkata Krishna Row v. Venkata Rama Lakshmi a sapinda, who like the appellant refuses to give his reasons for the opinion why such an heir should not be substituted while other sapindas decide otherwise, cannot be held to exercise properly the discretion confided to him. His opinion against the adoption must be put entirely out of consideration as capricious or prompted by undue considerations.
6. The decision of the Lower Courts is right. The second appeal in my opinion fails, and I would dismiss it with costs.
Moore, J.
7. I concur.
