(Prayer: Appeal (disposed of on 24-2-1949) against the decree of the Court of the Subordinate Judge, Kakinada, in O.S. No. 98 of 1943.)

The only question in this appeal is whether the adoption of the second defendant by the first defendant to her late husband Venkatapathi is valid in law. The appellants, who were the plaintiffs in the lower Court, are admittedly the nearest presumptive reversionary, they being the uncles sons sons of the last male holder Venkatapathi. In the plaint, even the factum of the adoption was denied, but at the trial it was not questioned. The first defendant, the widow, applied to the plaintiffs on 1st November 1942 for their consent to adopt the second defendant to her husband. The second defendant was her sisters sons son. The plaintiffs refused their consent by their letter dated 12th December 1942 (Ex. D.13). Thereafter, the first defendant obtained the consent of four other persons alleged to be reversionary more remote than the plaintiffs. The evidence of their consent is furnished by Exs. D.14, D.15 and D.

16. Under Ex. D.14, one Chiratla Satheyya gave his consent. Under Ex. D.15, Chiratla Suranna, examined as D.W. 3, gave his consent, and two brothers, P.W. 6 and his younger brother not examined, gave their consent under Ex. D.

16. It was in pursuance of the consent of these alleged reversionary that the widow purported to make the adoption on 13th June 1943.

The validity of the adoption was attacked on two main grounds: (1) that the refusal by the plaintiffs to give their consent to the adoption of the second defendant was valid, and (2) the consent given by the executants of Exs. D.14, D.15 and D.16 was not valid and proper, because they were not related to the last male holder, and also because their consent was purchased by passing of illegal gratification. The learned Subordinate Judge held against the plaintiffs on all the points and dismissed the suit.

Before us, Mr. P. Somasundaram, the learned Counsel for the appellants, did not seriously challenge the finding that the persons who gave their consent under Exs. D.14, D.15 and D.16 were remoter reversionary to the late husband of the first defendant. He, however, pressed upon us the two other points, namely, that the refusal by the plaintiffs was not improper and that the consent of the remoter reversionary was purchased.

The reasons for the plaintiffs refusal are contained in their reply, Ex. D.1

3. They gave three reasons: (a) that the boy proposed to be adopted was not a sannihita , sapinda , sagotra , or gnati , (b) that he was the only son of his father, and (c) that the proposed adoption was only a cloak for conveying the properties to the widows relation. They wound up by saying that if she had really thought of making an adoption, she should have resolved to adopt a boy from one among the sannihita, sapinda, sagotra, gnatis of Chiratlavari lineage and not made attempts in a different manner. They therefore categorically refused to give their consent to the proposed adoption. Mr. Somasundaram did not maintain that reasons (b) and (c) were good reasons for the plaintiffs refusal. But he argued that reason (a) was a proper one relying upon certain observations of Bhashyam Ayyangar J. in Subramaniam v. Venkamma (26 Mad. 627) [LQ/MadHC/1903/15] viz.,

There is nothing improper in a sapid proposing to give his assent to the widow adopting his own son, if such sapid be the nearest sapid and refusing to give his assent to her adopting a stranger or a distant sapid , if there be no reasonable objection to the adoption of his own son.

It may be mentioned that these observations were obiter, because in the case before the learned Judge, the plaintiff sapid was not asked to give consent to the adoption and he deposed that he could not say what he would have done if he had been asked. Assuming, however, that the learned Judges observations are sound law, they have no application to the facts of the present case, because the plaintiffs did not offer one of their sons in adoption. They did not even suggest that there was a sapinda or a sagotra available and desirable. Learned Counsel also referred us to the decision of a Bench of this Court in Venkatapathi v. Punnamma (1915 M.W.N. 236). But no assistance can be derived from that case, because it was there held that the refusal by the sapinda was improper, because the refusal was on the ground that the widow might wait till he got a son, whom she could adopt. As Mayne (Hindu law, tenth edition) remarks at 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 sapindas 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.

We have been taken through the oral evidence relating to the plea of the appellants that the consent of executants of Exs. D.14, D.15 and D.16 was purchased. We entirely agree with the learned Judges estimate of the evidence and we share his opinion that the story of the plaintiffs as regards the payment of illegal gratification to these executants is too improbable and absurd to believe. So far as Satheyya who gave his consent under Ex. D.14 is concerned, he was dead, and the only witnesses examined by the plaintiffs about his consent are P.Ws. 2 and

3. P.W. 2 eventually confessed that he was not present when the money was paid to Satheyya. According to him, he was told by Satheyya of the payment. P.W. 3 is the grandson of Satheyya a boy of his teens, and even he had to admit that he was not present when the money was paid. So, there is no legal evidence to support the plaintiffs case.

As regards the executants of Ex. D.15 examined as D.W. 3, the plaintiffs case is that the daughter of the natural father of the second defendant was given in marriage to the son of D.W. 3 and the marriage performed hastily a few weeks before the adoption took place and that at the marriage a katnam of Rs. 2,000 was paid and there was also a promise to make a gift of 3 acres of land belonging to the estate of Venkatapathi to the bridegroom if the adoption took place. The evidence relating to this part of the case is that of P.W. 4, the elder brother of D.W. 3 and P.W. 5, the purohit alleged to have officiated at the marriage. It is impossible to place any reliance upon the testimony of either witness. P.W. 4 admitted in his cross-examination that he was not present when the promise regarding the land was made. It may be also mentioned that there is nothing sinister in a katnam being paid at the time of the marriage, in the absence of anything to connect the payment with the consent obtained from D.W. 3.

Of the two brothers who gave their consent under Ex. D.16, one of them, P.W. 6, gave evidence that he received Rs. 100 in consideration of giving his consent. But, here again, in cross-examination, he admitted that the money was paid 15 days after he gave his consent and till he and his brother affixed their thumb impressions to Ex. D.16, they were not told that they would be paid Rs. 100, and the question of money payment did not crop up till then. His evidence does not certainly support the plaintiffs. On this evidence, we cannot arrive at any other conclusion than that arrived at by the trial Judge that the plaintiffs have hopelessly failed to establish that the consent of the executants of Exs. D.14, D.15 and D.16 was procured by illegal gratification.

The appeal, therefore, fails and is dismissed with costs.