Alfred Henry Lionel Leach, C.J.



1. The question which arises for decision in this appeal is whether the adoption by a Hindu widow of a son to her deceased husband is invalid when the widow is actuated, not by a sense of religious duty, but by an improper motive.



2. On the 8th June, 1931 one Kandulapati Gopalam died leaving two widows, the second respondent and the appellant. The second respondent was the senior widow. On the 20th October, 1931 the second respondent purported to adopt the first respondent and it is not suggested that any of the necessary formalities were ignored. On the 17th December, 1935 the first respondent filed in the Court of the District Judge of West Godavari the suit out of which this appeal arises to recover possession of Gopalams estate. The suit was subsequently transferred to the Court of the Subordinate Judge of Ellore. The first respondent alleged that Gopalam had by will given authority to the second respondent to adopt a son. He also alleged that irrespective of the will the adoption was valid as the nearest sapinda had given his consent. The appellant denied that the will had been executed by the testator and disputed the validity of the consent of the nearest sapinda. The will was not produced, but the Subordinate Judge held that the first respondent had been validly adopted because the second respondent had in fact received the consent of the nearest sapinda, and this is not now disputed. It may be taken for the purposes of the appeal that in adopting the first respondent the second respondent was not actuated by any religious motive and that her object was to prevent the estate falling into the hands of the appellant.



3. Two arguments have been advanced on behalf of the appellant. In the first place it is said that a Hindu widow cannot make a valid adoption when she has been prompted by a corrupt motive. In the second place it is said that here the consent of the nearest sapinda cannot be regarded as being a lawful consent because he gave it under the impression that Gopalam had by will directed the second respondent to adopt a son to him. The second contention was not seriously pressed and calls for little comment. The nearest sapinda was Kandulapati Bullivenkayya, the elder brother of Gopalam. He gave evidence and stated that his consent was given independently of any authority received from Gopalam. His statement was believed by the Subordinate Judge and we see no justification for disbelieving it.



4. The appellant mainly relies on a passage in the judgment of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397, which is usually referred to as the Ramnad case. It was there held that according to the law prevalent in the Madras Presidency a Hindu widow who has not received authority from her husband may nevertheless adopt a son to him if she has received the consent of his kinsmen. Subsequent decisions make it clear that by kinsmen is meant the nearest sapindas. The passage relied upon by the appellant reads as follows:

It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every case must depend upon the circumstances of the family. All that can be said is that there should be such evidence of the assent of kinsmen as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive.

We will assume that where a senior widow adopts a son in order to prevent her husbands estate falling into the hands of a junior widow her motive is "corrupt" in the sense that it is improper.



5. On behalf of the first respondent it is contended that the widows motive in making the adoption is not really a factor and that weight should not be attached to the words "and neither capriciously nor from a corrupt motive" which appear in the judgment in The Ramnad case (1868) 12 M.I.A. 397. For reasons which we shall state we consider that there is great force in this contention.



6. The judgment in The Ramnad case (1868) 12 M.I.A. 397, was delivered in 186

8. In 1876 the Privy Council had occasion to consider their observations in that case in Venkatakrishna Rao v. Venkatarama Lakshmi (1876) L.R. 4 I.A. 1 : I.L.R. 1 Mad. 174 [LQ/MadHC/1964/418] (P.C.), and in delivering the judgment of the Board Sir James Colvile observed:

Their Lordships think it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow, and that 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.

Here the weight is attached to the consent of the nearest sapindas. Their consent is the important factor and this has been emphasised in numerous decisions given by the Judicial Committee since. In quoting from the judgment in The Ramnad case (1868) 12 M.I.A. 397, Sir James Colvile pointed out that the evidence which was required was evidence of the assent of the kinsmen and not evidence of the widows motives. In 1935, the Privy Council expressly left open the question whether the widows motive could be disregarded when the consent of the nearest sapinda had been obtained, but in doing so their Lordships did express doubt whether her motive is relevant. This occurred when the Board delivered judgment in Sri Krishnayya Rao v. Suryarao Bahadur Garu (1935) 69 M.L.J. 38

8. In that case their Lordships observed:

The last objection urged by the respondent is. based on the motives of the first defendant. She is said not to have made the adoption for the benefit of her husband or upon religious grounds, but merely in order to get hold of a substantial part of the property. Their Lordships doubt if, where the consent of the sapindas has been obtained, the motive of the adopting widow is relevant. They do not, however, consider it necessary to decide this question in the present case, as assuming it to be so, they think that there is no ground for imputing a corrupt motive to the lady.

At this stage it will be convenient to refer to three decisions of this Court on which the appellant also relies. In Kandasami Goundar v. Chinnammal (1933) 37 L.W. 729, Madhavan Nair and Jackson JJ., applied the dictum in The Ramnad case (1868) 12 M.I.A. 397, and held that if the consent of the sapinda was given with the object of benefiting himself or the facts showed that the widow was making the adoption to defeat the interest of a sapinda and not to promote the spiritual welfare of her husband, the adoption was invalid. In Annapurnamma v. Appayya Sastri (1928) 56 M.L.J. 760 : I.L.R. 52 Mad. 620 (F.B.), a Full Bench (Coutts Trotter, C. ]., Madhavan Nair and Jackson, JJ.,) said that the consent of the son who is the nearest sapinda would be sufficient:

if the circumstances showed that the adoption was made by the widow in the proper and bona fide performance of a religious duty, and the real motive which actuated her was the conferment of spiritual benefit on her husband.

It was not necessary to say this for the purpose of deciding the question which was raised in the case, and Mr. Rajamannar, on behalf of the appellant, has very properly conceded that these observations must be regarded merely as obiter. The question of the widows motive was also discussed in Murahari Brahma Sastri v. Sumitramma (1933) 66 M.L.J. 577 : I.L.R. 57 Mad. 411 [LQ/MadHC/1933/167] , where Madhavan Nair and Jackson, JJ., again felt themselves bound by the observations of the Judicial Committee in The Ramnad case (1868) 12 M.I.A. 397, although Jackson, J., indicated in his judgment that if he were not bound by what had gone before he might have decided otherwise. These three decisions were, of course, all given before the judgment of the Privy Council in Sri Krishnayya Rao, v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 38

8. That judgment, was, however, considered by this Court (Cornish and Varadachariar, JJ.,) in Hari Ramayya v. Venkatachalapati (1935) 70 M.L.J. 61

9. The learned Judges apparently regarded the judgment of the Judicial Committee in Sri Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388, as actually deciding that the only person whose motive requires to be canvassed is the sapinda and not the widow, but the passage which we have just quoted from the judgment of the Board shows that this is going too far.

7. The question was fully debated by the Bombay High Court in Ramachandra Bhagawan v. Mulji Nanabhai (1896) I.L.R. 22 Bom. 558, which was decided by a Full Bench of five Judges. The Court held, one Judge dissenting, that in the Bombay Presidency any discussion of the widows motive in making an adoption was irrelevant, because a widow in the Bombay Presidency had the power to adopt without any consent and the adoption resulted in religious benefit to her deceased husband.



8. As the result of the judgment of the Privy Council in Sri Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388, the Court can now decide the question untrammelled by the observations in The Ramnad case (1868) 12 M.I.A. 397, on which the appellant so much relies. In Amarendra Mansingh v. Sanatan Singh (1933)65 M.LJ. 203: L.R. 60 I.A. 242: I.L.R. 12 Pat. 642 (P.C.), the Privy Council emphasised the importance of the spiritual significance of the act of adoption. In the Madras Presidency a widow cannot adopt unless she has received direct authority from her husband, either before his death or at his death by will, or the consent of the nearest sapindas, unless such consent is improperly withheld in which case she can go to the next nearest sapindas. Bearing in mind that the adoption confers spiritual benefit on the deceased husband, that in the Madras Presidency a widow can only adopt when she has received authority to do so it seems to us that her motive is entirely irrelevant. However spiteful her action may be towards others the benefit conferred upon her deceased husband by her action is in no way affected, and the fact that she cannot act without authority makes the position all the more clear. The English law does not inquire into the motive for the exercise of a power when the power exists and we can see no justification for applying a different rule here. Consequently we hold that when a widow has received valid authority to adopt her motive in doing so can be ignored. It follows that we consider that the decision in Kandasami Goundar v. Chinnammaf (1933) 37 L.W. 729, and Murahari Brahma Sastri v. Sumitramma (1933) 66 M.L .J. 577: I.L.R. 57 Mad. 411 [LQ/MadHC/1933/167] , on this question should be overruled and that the observations of the Full Bench in Annapurnamma v. Appayya Sastri (1928) 56 M.L.J. 760: I.L.R. 52 Mad. 620 (F.B.), to which we have referred should not be given effect to.



9. In the present case the widow received authority from the nearest sapinda and consequently her adoption of the first respondent should be regarded as valid notwithstanding that her object was to defeat the appellant. We dismiss the appeal with costs in favour of the first respondent.