Tahsil Naidu & ANR Vs. Kulla Naidu
& Ors [1969] INSC 251 (18 September 1969)
18/09/1969 BHARGAVA, VISHISHTHA 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 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.
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.
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.
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
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
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 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 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 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 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 mentioned 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 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 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 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. 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 another
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.
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.
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