8. Other persons, all agnates, are mentioned in the succeeding cases. As regards the evidence of the consent of kinsmen mentioned in the Ramnad case, their Lordships after quoting the closing sentences from the above extract beginning with: "It is not easy...," further observe in Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya (1876) L.R. 4 I.A. 1, 14 as follows: "All which this Committee in the former case" intended to lay down was, that there should be such proof "of assent on the part of the sapindas as should be sufficient "to support the inference that the adoption was made by "the widow, not from capricious or corrupt motives, or in" order to defeat the interest of this or that sapinda, but "upon a fair consideration by what may be called a family" council, of the expediency of substituting an heir by adoption "to the deceased husband." Observe the development of the doctrine; and how the terms kindred, kinsmen, "sapindas," were understood by their Lordships in connexion with the doctrine; the, Ramnad case refers to the "assent of the" kindred "and this case mentions the consideration of the question by the" family council." Whose family can it be, except that of the husband-and in his family the appellants have no place. The "sapindas" spoken of as constituting the family council would necessarily exclude a daughters son (a cognate) as he is not a member of the husbands family. Their Lordships will refer later to the nature of his relationship with his maternal grandfathers family. In relation to the wife, the importance of the husbands family is thus described by the Board in Sri Viradhi Pratapa Raghunadha Deo v. Sri Brozo Kishoro Patta Deo (1876) L.R. 3 I.A. 154, 191: "The Hindu wife upon her" marriage passes into and becomes a member of that family. "It is upon that family that, as a widow, she has her claim "for maintenance. It is in that family that in the strict "contemplation of law she ought to reside. It is in the" members of that family that she must presumably find such "councilors and protectors as the law makes requisite for her." Description cannot be more accurate, or language more emphatic. These observations, though made with reference to an undivided family, would apply to a divided family as well.

9. A further development of the doctrine is seen in Adusumilli Kristnayya v. Adusumilli Lakshmipathi (1920) L.R. 47 I.A. 99. In that case the term "family council," which began to raise doubts, came to be interpreted. After quoting the passage extracted above from Vellanki Venkatakrishna Rao v. Ramalakshmi L.R. 4 I.A. 1, 14, Viscount Cave, who delivered the judgment, observed L.R. 47 I.A. 102: "The reference in the last-mentioned case to family council "gave rise to some doubt whether, where there were agnatic "relations closely related to the deceased, the assent of those "standing in a remoter degree was either necessary or sufficient; "but this doubt was resolved in the recent case of Veera" Basavaraju v. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265, where it was held "that the absence of consent on the part of the nearest sapindas" cannot be made good by the authorization of distant "relatives whose assent is more likely to be influenced by" improper motives... The consent required is that of "a substantial majority of those agnates nearest in relationship" who are capable of forming an intelligent and honest judgment "on the matter." In the above passage their Lordships would stress the word "agnates," though it must be said that immediately following the passage quoted occurs the statement: "It must, however, be added that save in exceptional cases" such as mentioned above the consent of the nearest sapindas "must be asked." In the context "nearest sapindas" can only mean "nearest agnates." The decision in Veera Basavaraju v. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265, from the facts of which Viscount Cave derived the general interpretation of the term "family council," is of great importance in the line of cases which their Lordships are considering. In that case Mr. Ameer Ali, in delivering the judgment, observed that Ibid. 267: "The Ramnad case 12 Moo. I.A. 397 established the proposition that, in the" Dravida country, under the Dravidian 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. "The words" kindred and "kinsmen," words of general significance, used in the Ramnad case 12 Moo. I.A. 397, 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 similar interpreted. Mr. Ameer Ali further observes L.R. 45 I.A. 272: "The father of the deceased, if still" alive, continues to be her "natural guardian and venerable" protector.... If there is no father the divided brothers "take his place by virtue of the tie of blood as her husbands" nearest sapindas; they become her natural guardians and "the protectors of her interests." As in the previous case, nearest sapindas in the context can only refer to the agnates.

10. In support of his contention that as the nearest heir, the daughters son is entitled to be consulted more than the agnatic sapindas, the learned Counsel refers to the sentence in the judgment Ibid. 273: "Some light is thrown on the point by the decisions relating to alienations by widows with the assent of the next heir." (Golap Chandra Shastri, Hindu Law of Adoption, p. 259.) Their Lordships doubt whether the analogy is useful, for the principle underlying the requirement of consent in the two cases does not appear to be the same and, further, an alienation by a widow can be justified by necessity, quite independently of consent. Immediately preceding the sentence just quoted occurs the paragraph Ibid. 273:



And an eminent Hindu lawyer [referring to the same author], dealing with the question whose consent is requisite to the validation of an adoption when the husband is separate, remarks that an adoption is more a temporal than a spiritual institution, there being no spiritual reason for adoption if the deceased left a fraternal nephew, and that the requisites of a valid adoption are all temporal; therefore, a spiritual consideration should not be allowed to influence the judgment regarding the secular essential." There is no indication in the judgment that the Board has definitely adopted this view. The utmost that could be said in favour of the appellants is the statement in the judgment that "rights to" property cannot be left out of consideration in the "determination of the question" Ibid. 273, while the spiritual welfare of the deceased also is referred to in the course of the judgment. That the above secular view of adoption cannot any longer be maintained appears to be clear from the judgment of the Board in Amarendra Mansingh v. Sanatan Singh (1933) L.R. 60 I.A. 242. Their Lordships will refer to this point when they deal with the learned Counsels contention that the adoption is more a temporal than a spiritual institution.

11. The cases thus far examined which form the foundation of the doctrine of assent by the sapindas establish that a Hindu widow in a separated family in the Dravida country subject to the Mitakshara law may adopt in the absence of authority from her deceased husband, with the consent of the nearest male agnates (sapindas), they being by virtue of the relationship her most competent advisers. This is reiterated in Sri Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 Mad. L.J. 388, 395 where it is stated: "... the sapindas are to be regarded as a family "council Vellanki v. Venkata Rama L.R. 4 I.A. 1 the natural guardians "of the widow, and the protectors of her interests Kristnayya" v. Lakshmipathi L.R. 47 I.A. 99." The reference to the last mentioned decision shows that by sapindas their Lordships mean" male "agnates."

12. It would thus appear that in view of the decisions of the Board, with which alone their Lordships are concerned, there being no textual authority on the point--the law having been developed only by those decisions--the argument that the terms "kindred," "kinsmen," "sapindas" occurring in the judgments, should be held to include cognates also does not seem to be admissible. Their Lordships are fully alive to the criticism that in none of those cases the question whether cognates should be consulted specifically arose for decision; but it is striking that in the elaborate discussions which are of a general character obviously intended to lay down the law as to who should be consulted, no reference is made to cognates in general, or to a daughters son in particular. It appears to their Lordships that in those judgments the Board intended to use the terms "kindred," "kinsmen," "sapindas," as meaning only "male agnates." No doubt, according to the Mitakshara, "sapindas" would include all blood relations, however distant, as the term means "a person connected by the" same pinda or particles of the same body," but this meaning has well known limitations. Used without any qualification (as may be seen from these judgments), the term means agnatic relations only, and does not include cognates who belong to a different gotra. Before closing this discussion the following observations in Balasubrahmanya Pandya Thalaivar v. Subbayya Tevar (1937) L.R. 65 I.A. 93, 99 may be noticed:" Their Lordships would not be prepared to hold on the authorities that "the only kinsmen whose assent need be sought are the "agnates." In relation to its context, this observation does not support the appellants. In that case, there being no agnates of the husband in existence at the time of the adoption whose assent could be sought," a somewhat novel point was "taken... the lady had an inherent authority to adopt of" her own volition ".

13. This point was negatived by their Lordships with the above remark, which was obviously made to meet the argument that in the circumstances no consultation was necessary to validate an adoption; for being a woman, a widow is not independent and needs advice.

14. It was next: argued that as adoption affects property to which, according to the scheme of the Mitakshara law of succession, the daughters son has a right to succeed before the agnates, even before the father and mother of the deceased, and as he is also closer in relationship to the maternal grandfather than his divided agnates, it is essential that he should be consulted to render the adoption valid. The daughters son occupies a peculiar position in the Hindu law. His preferential right in the matter of inheritance is to be traced to his original position as Putreeka Putra, the son of an appointed daughter, i.e., a daughter appointed by the father to raise up issue to him. (See Mitakshara, Ch. I, Section xi, v. 3). His position, past and present, is thus succinctly described in Sir D.F. Mullas Book on Hindu Law (see p. 40, 9th ed.): "Although the" practice of appointing a daughter to raise up issue for her "father became obsolete, the daughters son continued to" occupy the place that was assigned to him in the order of "inheritance and even now he takes a place practically next" after the male issue, the widow and the daughters being "simply interposed during their respective lives. The difference "in his position under the old law and the present law is" that under the former he became by a fiction of law a member "of his maternal grandfathers family, while under the present" law he is a member of his own fathers family, but is also "regarded as a sons son to his maternal grandfather for" purposes of inheritance." The above extract shows that the position of the daughters son in the matter of inheritance is exceptional and, though he has retained his preferential right to inheritance, he is no longer a member of his maternal grandfathers family, but remains a member of his own fathers family; if so, his claim for consultation as a member of the family becomes very attenuated, whatever be the nature of his interest in the property.

15. The daughters son owes much to Vignaneshwara for his place in the scheme of the law of inheritance for, in the subjoined important text of Yajnavalkya, which forms the entire basis of the Mitakshara law of succession, the daughters sort is; not expressly mentioned. "The wife, and the daughters "also, both parents, brothers likewise and their sons, cognates, "a pupil and a fellow student: on failure of the first among "these, the next in order is indeed heir to the estate of one, "who departed for heaven leaving no male issue. This rule" extends to all persons and classes," Colebrooke, Mit. Ch. ii Section 1, v. 2. By interpreting the particle "also" in the above test, Vignaneshwara gave the daughters son a place in the law of inheritance." By the import of particle also (sects, 1 and 2) the daughters son succeeds to the estate on failure "of daughters. Thus Vishnu says if a male leave neither" son, nor sons son nor [wife nor female] issue the daughters "son shall take his wealth for in regard to obsequies daughters" sons are considered as sons sons...." Colebrooke, Mit. Ch. ii Section 2, v. 6. It is interesting to note the remark of Mandlik on the above interpretation by Vignaneshwara. He says:" After the word daughters son in the above text "occurs the particle (Chaiva) also, to give some sense to "which Vignaneshwara introduces here, the daughters son "in conformity with a text of Vishnu, the wealth of him" who has neither sons nor grandsons goes to daughters "son, for...." Compare Manu ch. IX; v. 136. (Mandliks translation, p. 221.) By the above ingenious exposition, the famous compiler of the Mitakshara shaped the law into conformity with the needs of the day without appearing to make any change and thus gave the daughters son his present place in the law of inheritance.

16. Their Lordships may now consider the question whether adoption is more a temporal than a spiritual institution, since admittedly the strongest ground on which the daughters son can base his claim for consultation is his interest in the property. In Veera Basavaraju v. Balasurya Prasada Rao L.R. 45 I.A. 265, 273, Mr. Ameer Ali observed as follows: "It is true that in the" Judgement of this Board in the Ramnad Case 12 Moo. I.A. 397 some "expressions are used which might imply that the question" of reversionary interest forms only a secondary consideration "in determining what sapindas assent is primarily requisite," but the remarks that follow as to the right of coparceners in "an undivided family to consider the expediency of intro" during a new coparcener, coupled with the observations of "the Board in the subsequent case Vellanki Venkata Krishna" Row v. Venkata Rama Lakshmi L.R. 4 I.A. 1, 14 show clearly that rights "to property cannot be left out of consideration in the "determination...." This is followed by a reference to the opinion of the eminent Hindu lawyer--Sarcar Shastri, already quoted--that an adoption is more a temporal than a spiritual institution. This is the highest level at which the learned Counsel for the appellant can put his case with reference to this point. The opinion of the eminent Hindu lawyer is entitled to much weight, but neither that opinion nor that of the Board shows that in determining who should be consulted the next reversioners interest in the property is the sole and supreme test. Their Lordships do not desire to labour this point, as in their view the following opinion of the Board, delivered by Sir George Lowndes in Amarendras case L.R. 60 I.A. 242, should be considered to have settled the question finally so far as the Board is concerned. After referring elaborately to the Brahminical doctrine of adoption and the 9th chapter of Manus Code, Sir George Lowndes, who delivered the judgment, observed as follows Ibid. 248-9:" In their Lordships opinion, it is "clear that the foundation of the Brahminical doctrine of" adoption is the duty which every Hindu owes to his ancestors "to provide for the continuance of the line and the" solemnization of the necessary rites. And it may well be "that if this duty has been passed on to a new generation," capable itself of the continuance, the fathers duty has been "performed and the means provided by him for its fulfillment" spent; the debt he owed is discharged, and it is upon "the new generation that the duty is now cast and the burden" of the debt. is now laid. It can, they think, hardly be "doubted that in this doctrine the devolution of property," though recognized as the inherent right of the son, is "altogether a secondary consideration. So Sir James Colvile," in delivering the judgment of the Board in Raghunadha v. Brozo Kishoro L.R. 3 I.A. 154, 192 observes, a distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle which Holloway J. has himself strenuously insisted upon elsewhere, viz., that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it. "There cannot be plainer statement than what is contained in the closing sentences of the above extract. The "substitution of a son of the deceased... is the essence of the thing, and the consequent devolution of property a mere accessory to it." his opinion of Holloway J. was obviously accepted by the Board, for the paragraph immediately following the above extract begins with the sentence, "Having regard to this well-established doctrine as to the religious efficacy of sonship...."

17. The next ground argued relates to the "spiritual benefit" which the daughters son can confer on the maternal grandfather. As regards the relative value of the offerings received from the sons and other male descendants and of the descendants of females, Dr. Sarvadhikhari, in his Tagore Law Lecture, 1880, on "the Hindu Law of inheritance" says at p. 766 that, "the pindas received from agnate descendants have greater efficacy than the pindas received from cognate descendants." Further on, at p. 767, he says that, "sons are legally bound to perform parvana rites in honour of" their paternal ancestors. In the case of maternal ancestors, "the daughters son should also celebrate these rites as an" act of moral obligation although not legally bound to do so. Thus there is a great difference in spiritual value between an act of legal obligation and an act of moral obligation. "He adds that" the pindas to the paternal ancestors are the principal oblations in a parvana sraddha and those given "The maternal ancestors are thus only secondary pindas" and there is difference in the spiritual benefit between these respective pindas. See also, Mayne on Hindu Law (10th ed., pp. 605-6) where, after referring to Dr. Sarvadhikharis views, it is stated that, "it would be more correct to say that the sons are under a religious obligation to perform them [the sraddhas] and that their failure would entail sin. It is wholly optional with the daughters son who would incur no sin by his failure to perform the sraddha, but who would earn merit if he did it."

18. Though there are certain texts which say that a daughters son should perform sraddhas for the maternal grandfather, their Lordships think that the more weighty view as regards the relative value of his duties in the matter of sraddhas is as stated above. In the circumstances, it cannot be said that the daughters sons claim that he bestows more spiritual benefit to his maternal grandfather has been made out, when it is doubtful whether his claims are even as good as those of the sons and other agnate descendants. If "the substitution" of a son of the deceased... is the essence of the thing, "and the consequent devolution of property a mere accessory" to it "then it is difficult to agree with the appellants learned Counsel that the claims of the daughters sons should be held to be the determining factor in the matter of consultation.

19. The decision relied on by the learned Counsel for the appellants in support of his contention is Brahmayya v. Rattayya (1925) A.I.R. (Mad.) 67, where Ramesam J. held that in a case where the daughters son is the next heir, and is a major and otherwise competent to advise, he ought to be consulted by the adopting widow. As already remarked, Jackson J., the other learned judge, differed from this view. In the course of this judgment their Lordships have generally dealt with the main reasoning in Ramesam J.s judgment. They will only add that the question did not directly arise for decision in the case and the appeal was disposed of on the ground that the assent of the sapindas was invalid--a point on which both the learned judges agreed. The opinion of Ramesam J. was approved by Spencer and Venkata Subba Rao JJ. in Kesar Singh v. The Secretary of State for India (1926) I.L.R. 49 M. 652, where they held that in the absence of agnate reversioners, a Hindu widow can in Southern India adopt with the consent of the nearest cognate reversioner -a point with which their Lordships are not concerned in this appeal. In that case also the present question did not arise for decision. The above decisions, as well as those in which, when the question directly arose for decision, the contentions now put forward were overruled (see Viswasundara Row v. Somasundara Rao (1920) I.L.R. 43 M. 876; Murahari Brahma Sastri v. Sumitramma (1933) I.L.R. 57 M. 411), have all been carefully considered in the Full Bench decision of the High Court in Seshamma v. Narasimharao I.L.R. [1940] M. 454. In their Lordships view the question under discussion has been correctly decided in that case. Question No. 2 must accordingly be decided against the appellants.

20. For the reasons given above, their Lordships are satisfied that the failure to consult the daughters sons does not in this case render the adoption invalid. The appeal fails, and their Lordships will humbly advise His Majesty that it should be dismissed. The appellants will pay the costs of the appeal.