Krishnan, J.This is an appeal from the decree of the District Judge of Godavari in O.S. No. 34 of 1919 on his file which was a suit brought by the respondent the Maharajah of Pittapuram to have it declared that the adoption of the 2nd defendant by the 1st defendant, the widow of Venkata Rao, her deceased husband, is invalid and not binding on the plaintiff and not affecting his rights in any way. The suit was decreed in plaintiffs favour by the District Judge and hence the appeal to us by the 2nd defendant. The 1st defendant it may be mentioned died pending the appeal and in her place Surya Prakasa Rao has been brought on the record provisionally as the 3rd respondent.

2. The genealogical table given below shows the relationship of the parties concerned in this litigation and will serve to elucidate some of the questions raised:

3. Gangadhara Rama Rao (No. 6 in the pedigree) the old Rajah as he is hereafter called in this judgment, when he was the zemindar carved out the estate of Gollaprolu which is the subject-matter of this litigation from his Pittapur Estate and granted it to his brother Venkata Rao (No. 8 in the pedigree) in lieu of maintenance by deed Ex. O, dated the 8th December 1869 (Ex. 0-I being its counter part). There was some dispute as to the nature of this grant but it was admitted before us by the plaintiffs Vakil that it was an absolute grant. Venkata Rao died in 1871 leaving as his widow the 1st defendant Ramayamma but no issue. The adoption in dispute in the present suit was made by Ramayamma to her deceased husband Venkata Rao on the 15th February 1914 in Madras, the person adopted being Sri Krishna (No. 16 in the pedigree) the fourth son of Ramakrishna (No. 11 in the pedigree) who had himself been adopted by the old Raja in 1873. Sri Krishna was a major at the time of his adoption, a very unusual circumstance as ordinarily minors are adopted and there was his minor brother Murale Krishna available. It is this adoption that plaintiff is seeking to invalidate as one of the nearest reversioners of Venkata Rao being according to him the aurasa son of the old Raja. Defendants while supporting the validity of the adoption denied that plaintiff was a reversioner of Venkata Rao as according to them he was not the son of the old Raja by his wife Mangayamma as alleged but a stranger boy a supposititious child fraudulently put forward as his son by her and they pleaded that he was, therefore, not entitled to dispute the 2nd defendants adoption.

4. Two main issues arose for decision on the pleadings besides some subsidiary ones. The first question related to the alleged aurasa sonship of the plaintiff; it was split up into two parts as the burden of proving that he was the son of his alleged mother Mangayamma was on the plaintiff whereas when that is established the defendants had to prove u/s 112 of the Evidence Act that the old Raja had no access to Mangayamma at any Lime that the plaintiff could have been begotten.

5. The issues were thus framed as

1 (a) whether the plaintiff is the son born of Raja Mangayamma Garu and

1 (6) if so, is he not the aurasa son of the Raja Gangadhara Rama Rao.

6. The other issue was issue No. 3.

Whether the adoption of 2nd defendant by the 1st defendant is true and valid.

7. These are the issues we have to consider in this appeal.

8. Before, however, dealing with the evidence regarding issues Nos. 1(a) and 1(6) a preliminary question arises for decision regarding the admissibility in evidence of certain documents which were tendered by the defendants in the lower Court but were rejected by that Court and which are again tendered in this Court in C.M.P. No. 554 of 1921. A list of them is given on page 956 of the paper-book, Vol. I, parts I and II and they have been printed in a separate book. They consist mainly of public copies of 4 depositions of witnesses taken in O.S. No. 6 of 1891 with other documents asked to be admitted along with these depositions as they are referred to in them or are required to explain them. The case of these other documents need not be considered apart from that of the depositions.

9. The admissibility of these depositions in evidence in the present case is governed by Section 33 of the Evidence Act which deals with the admission of evidence given by witnesses in a former judicial proceeding as evidence in a subsequent judicial proceeding. There are three provisos to the section which must be complied with before such evidence can be admitted; we are here concerned really only with the first proviso which requires "that the proceeding was between the same parties or their representatives-in-interest." The District Judge has held that this condition is not fulfilled in the present case and I agree with him.

10. The evidence sought to be admitted was given in what is called the 1st Pittapur case O.S. No. 6 of 1891. That was a suit brought by Ramskrishna against the present plaintiff and the Court of Wards as his guardian to recover possession of the zemindari of Pittapur which had been taken possession of by the Court of Wards on behalf of the present plaintiff. There was no doubt an issue in that case as to whether the present plaintiff was the aurasa son of the old Raja and large body of oral evidence was adduced on both sides. Though the first Court had given a finding against the present plaintiff on the point the High Court in appeal and the Privy Council on further appeal did not go into the question. It is true the same issue has arisen in the present case but Ramakrishna is not a party here though plaintiff is. It is only if any of the defendants here can be held to be "the representative-in-interest" of Ramakrishna in the previous suit that Section 33 proviso will apply. It is not contended that the 1st defendant the widow is in any sense such a representative. But it is strenuously argued for the appellant that the 2nd defendant is such a representative. It seems impossible to hold that 2nd defendant is not sued here as the adopted son of Venkata Rao with reference to Gollaprolu estate and as such it is difficult to see how he could be treated as the representative of Ramakrishna who was suing to recover Pittapur Estate in his own right as the next heir of the old Raja on his death. If any one could be treated as his representative-in-interest it will only be his eldest son who might succeed him in the zemindari on his demise. Even as one of the junior sons of Ramakrishna, the 2nd defendant cannot be treated as his representative; he is sued in the present suit only as the adopted son of Venkata Rao.

11. A lengthy argument was addressed to us as to the meaning of the words "their representative in-interest" in the section. It was said that the words meant a person who had the same interest in the question at issue as the person or persons in the second judicial proceeding irrespective of what the subject-matter of the second proceedings was and it was argued that as Ramakrishna and his sons and other members of the Pittapur family were equally interested in preventing a stranger from entering into the family circle as a member of it and as such entry was a common danger to all the members to be warded off, Ramakrishna is a representative-in-interest of the 2nd defendant whether one looks upon him in his capacity as Ramakrishnas son or in his capacity as the adopted son of Venkata Rao for the latter was also a member of the Pittapur family. Though Venkata Rao was divided from the old Raja as the result of Exs. O and O-1 still it is said he is not divided from him as to the impartible zemindari of Pittapur. These are ingenious contentions which are difficult to follow and are based on the contention that when the proviso talks of "their representatives" we must read the word "their" as referring to the parties in the second proceeding. The use of the word "was" in the past tense in the proviso it is argued shows that "the proceeding" referred to in it, must be the earlier or the first proceeding and the proviso when expanded would then read as follows: "that the first judicial proceeding was between the same parties as in the second judicial proceeding or between the representatives-in-interest of the parties in the second judicial proceeding." The wording of this proviso is perhaps a little defective as pointed out by Ameer Ali and Woodroffe in their book "The Law of Evidence applicable to British India" 8th Edition, page 353; instead of the words "their representative-in-interest" the words should have been "those whom they represent in interest," or the word "is" should have been used instead of "was" no that the proceeding may be read as the second proceeding. The meaning, however, seems to me quite clear and has never been doubted; the parties in the second proceedings in which evidence is tendered must be the representative-in-interest of the parties in the first proceeding, or in other words should be persons who derive their title through or claim under them or shortly are their privies. The English rule is stated very clearly in Taylor on Evidence 11th Edition, para 467 as follows: "Evidence taken on the first trial is admissible in a second trial if, although the two trials be not between the same parties the second trial is between persons who legally represent the former parties or are their privies in estate." Halsburys Laws of England states the rule in para. 751, Vol. 13, page 546 thus "at common law depositions taken in a judicial proceeding are admissible in evidence in a subsequent judicial proceeding in proof of the facts stated therein provided the proceedings are between the same parties or their privies." The observations of Lord Cottenham in Humphreys v. Pensam (1836) 10 E.R. 498 : 1 My. & Or. 582 chat "depositions, can only be read for or against those who are parties or privies to the suit in which the depositions were taken; and they cannot be read for a party, unless they can also be read against him" are cited.

12. There is no reason to suppose that the Indian rule is in any way different from the English rule on this point. The words "representative-in-interest" occur also in Section 21 of the Evidence Act and there they cannot possibly, have the meaning suggested by the appellants Vakil. There is no reason to construe the same expression differently in different sections of the same Act.

13. Appellants Vakil has cited certain cases on res judicata where a finding in a suit brought against a widow representing the estate of her husband has been held to be res judicata against the reversioners in Chaudhri Risal Singh Vs. Balwant Singh, and Vaithialinga Mudaliar Vs. Srirangath Anni, Those decisions are based on the fact that the widow represents the estate for herself and the reversioners and on a principle analogous to that embodied in Explanation VI to Section 11, Civil Procedure Code, the latter should be held to claim under her. The case of the vatandar in Radhabai v. Anantrav Bhagvant Deshpande 9 B. 198 : 5 Ind. Dec. 133 proceeds on a similar principle. They recognize no doubt a certain extension of the rule of res judicata and such extension has also been recognized with reference to Section 33 of the Evidence Act in the case of Patinharkurn v. Raman Varma 24 Ind. Cas. 519 [LQ/MadHC/1914/174] : 28 M.L.J. 669 in the case of holders of Malabar Stanoms. But the position in the case before us is not in any way analogous to those cases. Here Ramakrishna was not litigating on behalf of anybody but himself. The English cases in which such extensions have been rocognized are representative actions as in Hanover v. Hemfray (1882) 19 Ch. D. 224.

14. The argument that Section 33 can be applied without any reference to the subject-matter of the two suits seems clearly wrong. The case of Doe v. Earl of Derby (1834) 1 Ad. & E1. 783 : 3 N & M. 782 : 3 L.J.K.B. 191 : 110 E.R. 1406 : 40 R.R. 423 shows that the same title must have come into question in each case. The words representative-in-interest clearly shows that we have to consider the interest involved in each case and they must be the same, or similar. Without reference to the subject-matter it cannot be predicated that one is the representative-in-interest of another. Here we have two different and distinct estates involved in the two suits, the Pittapur and Gollaprolu Estates. Oh this ground also the evidence tendered must be rejected.

15. For the above reasons I agree with the District Judge that the depositions tendered are inadmissible in evidence in this case. We have now to consider issues Nos. 1 (a) and 1 (b) on the evidence on record.

16. I shall now proceed to consider issue No. 1 (a) first which raises the question whether Mangayamma is the mother of the plaintiff as alleged by him or not. The circumstances leading up to the alleged birth of the plaintiff may be briefly stated. Mangayamma was married in 18551 when she was. 18 years old, and had attained her puberty, to the old Raja who was then a lad of 17. They lived together in Pittapur but she showed no signs of pregnancy. The Raja married a second wife Sitayamma in 1865 and again a third wife Subbayamma generally known as Nuzvid Rani in 1871. In 1879 he again married his fourth wife Ramayamma, who, however, died soon after in 1882. Not having any children by any of his wives he seems to have conceived the idea of taking a boy as his son in adoption as he was anxious to defeat the claims of Surya Rao (No. 9 in the pedigree) who would succeed to his estate if he died issueless, and whom he particularly disliked. His choice fell upon Ramakrishna (No. 11 in the pedigree), the brother of the late Rajah of Venkatagiri and of the present Maharajah i of Bobbili. He adopted Ramakrishna in September 1873. In 1881 Mangayamma developed what seemed to be symptoms of pregnancy and her Seemantham ceremony was performed on a grand scale at Samalkota in April 1881. It is not disputed that it was generally believed that she was really pregnant (see para. 14 of the District Judges judgment). The old Raja was undoubtedly of that opinion as appears from his letters to his legal adviser and friend Mr. Willie Grant of Madras and to his agent Venkatarangam Chetti in Madras. See Exs. LX (z), XXXVIII (a), LX (c), LX (d) LX (aa), XXXVIII (d), LX (j), LX (e), LX (f), LX (g), LX (h), LX (k) and LX (1).

17. Seemantham, it may be mentioned, is the ceremony performed among Hindus at the first pregnancy of a woman, generally between the fourth and the eighth months of pregnancy. Mangayamma went away soon, after to her parents house in Tiruvur for confinement and remained there in all for over three years. It would appear from the evidence that she had what seemed like labour pains after the ordinary period of gestation of nine months but she brought forth no child at all. All the appearances of pregnancy still continued. The evidence is that they continued for 4 nine months periods, that is for three years in all, when they mysteriously disappeared and she regained her normal appearance; and the witnesses say her menses were re-established. The witnesses who speak on the point are P. Ws. Nos. 97, 98, 99, 100 and to some extent 101. There does not seem to be any special reason to discredit their evidence or to think Mangayamma was merely feigning. The symptoms would seem to suggest that the lady had what is known to medical science as "Spurious pregnancy" or pseudocyesis. Several medical works were cited to us as to this peculiar condition of women; among them were Gallabin and Blackers Practice of Midwifery, page 191, Play fairs Science and Practice of Midwifery, Vol, I, page 182 and the recent publication of Fairbairn called Gyncology with Obstetrics, page 103. The following passage may be quoted from Fairbairn to understand what spurious pregnancy is like and how it is caused. "pseudocyesis is the term used for cases in which signs and symptoms simulating pregnancy are present, sometimes deceiving patient and medical adviser. The condition occurs most frequently in women with an intense desire for a child, those married late in life or near the climacteric or those to whom a successor is important for financial or family reasons. There may be some mental instability or actual delusion, of the error of which it is impossible to convince the patient. In other cases the pregnancy may be feigned, to obtain damages, force marriage, or extract blackmail, or in the case of a married woman as a preliminary to producing a suppositious child. In such cases there may be amenorrhoea, indefinite changes and the woman may state that she has morning sickness, and has felt movements which has led to the loosening of her garments. There may be a definite swelling of the abdomen simulating pregnancy, followed by a spurious labour."

18. It is the defendants case on the other hand that she had no appearance of pregnancy at all in Tiruvur but was only pretending that she had, watching all the time for an opportunity to get hold of a male child and pass it off as her own son. The Venkatagiri people on behalf of Ramakrishna seem to have gone to the length of setting up spies in Tiruvur to watch the movements of Mangayamma to see whether she was making any attempt to smuggle a child and to prevent it. I am inclined to think there was no real ground for the suspicion. It is true they have called a witness D.W. No. 15 who speaks of such an attempt but as he is discredited by the District Judge (para. 20 of judgment) and is entirely uncorroborated, I can place no reliance on him. In any case there was no child either born of Mangayamma or smuggled by her in Tiruvur.

19. While Mangayamma was in Tiruvur the old Rajah married three more wives in succession in the course of 3 months from April to June 1884, namely, the Viravaram Rani, the Chitrada Rani and the Bobbili Rani. This seems to have wakened up Mangayamma lest she lose the favour of her husband and she came away from Tiruvur in August 1834 to Rajahmundry where she stayed till November, whence she went over to the Rajahs residence in Pittapur itself.

20. While she was thus living in Pittapur it is the plaintiffs case that she became again pregnant by the Rajah about the end of January or beginning of February and that he was born as the result of that pregnancy as the son of Mangayamma and the Rajah on the night of the 5th October, 1885.

21. It is the case of both sides that on the night of the 5th of October a child was in Mangayammas room in the Fort and that child is the plaintiff. The real question for decision is whether that child was a child given birth to at the time by Mangayamma or was a child of a stranger woman smuggled into her apartments from outside by her dasis Jalde Appi and P. Seetha with the help of her confidential servant Kanakayya as alleged for the defendants. Considering this event took place over 40 years ago the plaintiff being now 41 years old a good portion of the evidence has been lost by the death of witnesses; and one has to bear in mind also that the witnesses are now speaking to events which happened long ago. The contention of the appellants learned Vakil before us mainly is that the circumstances of this case indicate the extreme improbability of Mangayamma having become pregnant and having given birth to a child on the night in question and he, therefore, asks us to accept as true the evidence given by the two dasis Appi and Seetha as to the introduction of the child and to hold that the plaintiff is not the son of Mangayamma. The circumstances he refers to are:

1. The fact that the pregnancy in question here is the first pregnancy of a woman who was 40 years old and who had been married and living with her husband for about 24 years and yet was sterile till then.

2. Spurious pregnancy occurs in sterile women generally at their climacteric or the period of their menopause and thereafter conception is impossible or extremely rare.

3. The old Rajah wag suffering from obesity, diabetes, gonorrhea of 15 years standing and other diseases and was probably impotent and he is not likely to have impregnated Mangayamma in February 1885 as alleged; she had no symptoms of pregnancy in Pittapur.

4. The evidence of what took place in Mangayammas room indicates that there were really no labour pains and no child birth. These are the contentions raised and they may each be considered separately.

22. As regards No. 1 it is no doubt true that the likelihood of first pregnancy in a woman of 40 is very small. Nevertheless it cannot be said that she will not conceive; such conceptions though rare are known. Appellants Vakil himself does not deny it. He places more stress upon his second objection based on Mangayammas spurious pregnancy. The medical books cited no doubt do countenance the idea that in sterile women pseudocyesis appears generally towards the time of menopause but here again it is not a necessary inference from pseudocyesis that menopause has occurred and that no further pregnancy will take place. Dr. Hingston the medical expert examined as P.W. No. 103 says that spurious pregnancy rather helps towards subsequent real pregnancy than hinders it. In the case of Mangayamma there is positive evidence that she had menses after the symptoms of spurious pregnancy subsided in Tiruvur (P. Ws. Nos. 97 to 100) and again she had them for some months, after the plaintiffs birth; the District Judge has referred to this evidence in para. 45 of his judgment; and corroborated as it is by entries in the accounts there is no reason to distrust it. Menopause occurs in India according to Dr. Hangston about the 45th year; in England the chances of conception and of childbirth are not taken to have come to an end till a woman is 52 or 53 years old. There is thus nothing in these two above-mentioned circumstances to militate necessarily against the truth of Mangayammas delivery. The utmost that could be said is that it would be an occurrence of an unusual character. The third objection taken rather depends upon issue No. 1 (6) dealing with the old Rajahs powers of potency. This issue itself was not very seriously pressed before us as the learned Vakil for the appellants rightly appreciated that the evidence now on record was too meagre to establish impotency more especially, in view of the fact that Viravaram Rani, one of the wives of the old Kajah, was admittedly actually pregnant between February and October 1885 and gave birth to a daughter, soon after plaintiff was born. It was feebly suggested that this child was the result of an act of unchastity on the part of the Rani committed while she was in her parents house where she had gone about the time. It is easy to make such an imputation but there is no proof of it at all. It must be rejected. If the Rajah could have a child by Viravaram Rani in spite of his ailments, he could have another at the same time by Mangayamma unless she was incapable of conception. Objection. No. 3 is also thus not of any force.

23. The 4th objection depends on the evidence as to Mangayammas appearance before plaintiffs birth and as to what took place on the night of the 5th October 1885 when plaintiff was said to have been born. Defence case is that there were no symptoms of pregnancy in Mangayamma before the birth of plaintiff, but as pointed out by the District Judge in paras. 21 and 22 of his judgment there is a considerable body of evidence on the plaintiffs side of old and respectable ladies who speak to her having all the appearance of a pregnant woman before the plaintiffs birth and of losing that appearance thereafter, The evidence of some of these witnesses is, it is true, open to attack; they are distant relations of the plaintiffs or interested witnesses, but even leaving them out there is sufficient evidence to think that Mangayamma did have the appearance that these witnesses speak to. The District Judge has carefully analysed this evidence at length and it is unnecessary for me to go into it in detail again. In fact this evidence is one of the strong points on which the plaintiffs Vakil relies. It should be noted that it is not the defendants case that Mangayamma had an attack of spurious pregnancy while in Pittapur, in which case the appearances might be consistent with their case. The next point urged was that the evidence as to the commencement of labour pains on the 5th on plaintiffs side is very discrepant, some witnesses putting them as having begun in the morning, others at different hours of the day and some even so late as in the evening. It is said that there were really no labour pains at all, as the evidence is that the old Raja and the Doctor Dharmaraju P.W. No. 48 were all asleep at the time that Mangayamma was being confined; this, it is said, is a very unnatural condition of affairs, as Mangayamma as a primipai would have suffered great pain and would have screamed out and created sufficient noise to wake up all sleepers if she was really being confined. It is also pointed out that there is a discrepancy in the plaintiffs evidence regarding the cutting of naval cord of the child. These criticisms do not seem to me to carry much force. The important thing is the evidence as to Mangayamma getting labour pains that day, for that would indicate her subsequent confinement, and there is a good deal of evidence on the point which the District Judge has referred to at length in para. 26.

24. The absence of a midwife in the room was also commented upon. Ordinarily one would have expected a midwife to be present but the Ranis seem to be content with having their maids to attend on them and act as midwives. The same procedure was adopted in the case of Viravaram Ranis confinement some 15 days after. The absence of a midwife does not, therefore, lead to any suspicion. There was Dr. Dharmaraju, P.W. No. 48, ready to help if anything went wrong. His evidence which the District Judge has accepted and which there is nothing definite to justify one in rejecting speaks to his having remained outside the Ranis room to be ready to help. The old Raja has no doubt given a very handsome pension to him which is continued by the plaintiff and a house worth Rs. 2,000; but it does not follow that this favour was shown to him to make him give false evidence in support of the fact of the child being the Rajas child. It was also urged by the appellants Vakil that plaintiff has adduced no evidence as to his actual birth from the womb of Mangayamma, Bodithi, a dasi, and Chitrada Rani who were both present besides others are now dead and gone and as 40 years have now elapsed since the event no great weight can be attached to this criticism. What is proved clearly indicates that Mangayamma gave birth to the child.

25. The evidence of Dr. Dharmaraju is very material in the matter as he and the Raja went into Mangayammas room immediately after the plaintiffs birth was announced and he felt the pulse of the lady and saw the afterbirth on the ground. His evidence is very clearly in favour of the plaintiffs case. I have already stated that there is no good reason for discrediting him. Defendants objections except that they throw some suspicions on the plaintiffs story are not in my opinion, sufficient to justify us in discrediting it altogether. The question then is, can we believe the evidence of the two dasis Appi and Seetha who speak directly to the introduction of the spurious child. They give a rather fantastic story that on the 5th October late in the day they were suddenly called by Mangayamma who confided to them her intention to smuggle a child and asked them to help in the matter by going at night to the wall of Lakshminarayana Doddi on the outskirts of the fort and bringing away the child which they were told that one Kanakayya would bring there and they agreed. The story on the face of it does not look a very probable one. If Mangayamma was really smuggling a child she would have taken greater precautions than confide to these dasis who are not shown to be her confidential dasis. The dasis do not seem to have taken any particular precautions themselves, but only went to Kanakayya and brought the child he had ready there. The risk of discovery was great and yet nothing seems to have been done by way of precaution. Bodithi, another dasi, is said to have gone and brought the afterbirth through another route where she had to pass through certain parahs or guards. Seetha has not been examined as a witness now, as she is dead, but the evidence given by her in the previous suit has been filed and read. It was admitted u/s 32, Clause (3) of the Evidence Act on the ground that her evidence made her liable to prosecution as an abettor of the crime of introducing a spurious child. The respondents Vakil has objected to this evidence and it is doubtful whether it is admissible. Assuming however, it is, there is only her evidence and Appis, to support the defendants story of the child being smuggled. The District Judge who heard the evidence of Appi has discredited her as being a worthless witness and it is not possible for us in appeal to rely on such a witness. Seetha gives the same story. They are both witnesses of no particular credit and are on their own showing accomplices and I must decline to act on their evidence especially as it is in contradiction of the evidence on the plaintiffs side which seems to be far more reliable. It is clear that at any rate it is entirely inadequate to justify us in interfering in appeal with the District Judge and holding that the plaintiff the Maharajah is not the son of his parents.

26. As pointed out by respondents Vakil, the very moment the old Rajah was appraised of the plaintiffs birth he accepted him as his aurasa son and proclaimed him to the world to be such. On the very night guns were fired from Pittapur Fort. The Brahmins were given presents. Relations and friends and important officials were informed of the event. There is a good deal of evidence to show that the Rajahs relations all accepted plaintiff as the Rajahs son and attended his Bharasala and Annaprasanam ceremonies and treated him as the real son of the Rajah. The learned District Judge has set out all this evidence at full length and it is, therefore, unnecessary to discuss it again.

27. It is clear that the plaintiffs parents fully recognized him as their son and he was treated by all others as his son. Rama Krishna who stood to lose so much by the birth of the son took no immediate steps to challenge it except to write a letter some six months after, asking the old Rajah for particulars of the birth of his son to which the Rajah replied indignantly that he had already informed him of the event by telegram at the time; it was only after the old Rajahs death in 189(3 that Rama Krishna ventured to challenge it in a Court of Law.

28. Now it has been laid down by the House of Lords in the famous Douglas Peerage case reported in Notable British trials; Scotch series, the Douglas cause on page 152 that "where a child establishes the possession of filiation which is the acknowledgment of the parents, and habit and repute everything must be presumed in his favour and he cannot be dispossessed of that estate except upon clear, strong and decisive evidence" Though in the present case the burden was initially on the plaintiff to show that he was the son of Mangayamma it was shifted on to the defendants as soon as he showed that he had been acknowledged by his parents to be their son and that he has been accepted as such by repute and habit for the last 40 years; it would require much clearer and stronger and more reliable evidence on the defendants part to justify a finding against the plaintiffs paternity.

29. The motherhood of Mangayamma being found, it is conceded that there is no case to disprove the fatherhood of the old Rajah.

30. In these circumstances, I accept the District Judges findings on issues Nos. 1(a) and 1 (6) and find that plaintiff is the aurasa son of the late Rajah of Pittapur, Gangadhara Rama Rao.

31. The next issue for consideration is the 3rd issue as to the truth and validity of the adoption of the 2nd defendant by the 1st defendant. The truth of the adoption is not now disputed. The adoption ceremony was carried out on the morning of the 15th February, 1914, in Moti Mahal in Madras in the presence of a number of very respectable witnesses who have all attested the registered deed of adoption, Ex. XVI. The evidence is conclusive on the point. The suggestion made on the plaintiffs side in the lower Court that Rama Krishna was not in a state of health or mind to take part in the adoption ceremony or to give away the boy in adoption is not now persisted in. The homam was subsequently performed in the bungalow of the Maharajah of Bobbilli. The question that remains is thus only as to the validity of the adoption.

32. The plaintiffs objections to the validity of the adoption are formulated by the District Judge in para. 121 of his judgment.

33. They may be stated as follows:

(1) The 1st defendant made no bona fide attempt to obtain plaintiffs consent; she had made up her mind to adopt the 2nd defendant whether plaintiff consented or not and her letter, Ex. EE-9, asking for consent was sent as a mere formality.

(2) Plaintiffs refusal was proper and justified on account of the unfitness of the boy and of the nature of the arrangements under which the adoption was made.

(3) Rama Krishnas consent by itself wa ineffective and legally insufficient to suppor the adoption. Plaintiff being the aurasa son of the late Raja and, therefore, of superior status to him and the head of the family, his objection should prevail.

(4) The adoption being made 40 years after 1st defendants husbands death under the influence of her brothers and nephews and from corrupt and improper motives to defeat the plaintiffs reversionary right and to secure half the estate and other benefits for herself and for her brothers it is invalid.

(5) She had no power of adoption as her husband had entered into an agreement not to adopt and that implied a prohibition by him to her not to adopt.

34. These are the objections which have been urged before us as well and they are the ones we have to deal with.

35. The District Judge has upheld the first objection and thinks that the 1st defendant did not make a bona fide attempt to get plaintiffs consent and did not care to be influenced by his advice and that that ground alone was sufficient to hold the adoption to be invalid. He deals with the point in para. 130 of his judgment. I am of opinion that on the evidence this view cannot be supported. We find that after obtaining Rama Krishnas consent letter, Ex. XV (a), dated 30th January, 1914, she wrote to plaintiff her letter Ex. EE-9, on the 2nd of February for his consent. As she was proposing to adopt Rama Krishnas son she had naturally to make sure of his consent first. There is nothing wrong in the wording of letter Ex. EE-9; in fact the plaintiff admitted in the witness-box that it was a proper letter. It is now discovered that it does not expressly mention that plaintiff is a sapinda. That is of no importance; it is as a sapinda that plaintiff has asked his consent and in no other capacity. The District Judge says that she had made up her mind to adopt before sending Ex. EE-9 whether plaintiff consented or not. No doubt she had provisionally arranged to take 2nd defendant in adoption but there is nothing to justify the conclusion that she had finally made up her mind on the point or that she would not have listened to plaintiffs advice if there were good reasons for it. Her conduct in sending him a reminder, Ex. EE-10, on 7th February 1914 giving her altered address when she did not get plaintiffs reply promptly clearly shows that she was anxious to have his reply before making the adoption. As a matter of fact she made the adoption only some 2 or 3 days after she received his reply, Ex. EE-11. It is true she had made arrangements toper-form the adoption sometime previous to receiving plaintiffs reply. She might have done so in the hope that plaintiff would not object. The District Judge mentions it as a point against the 1st defendant that she did not send EE-9 by a special messenger, but by registered post. Surely she cannot be blamed for sending an important letter like Ex. EE 9 by registered post. Whatever other objection may be urged to the adoption, I think objection No. 1 is a futile one and must be rejected.

36. Taking objection No. 5 next, I agree with the District Judge that there is no force in it either. It is true that in the agreement Ex. 0 1, para. 8 (counter-part Ex. O), there is a covenant by the 1st defendants husband Venkata Row not to adopt with a counter-covenant by the plaintiffs father not to adopt either. These are personal covenants and it is not explained how it could bind the 1st defendant. It is said that it implies a prohibition against the widow by the husband not to adopt. Now plaintiffs father did not consider himself bound by the covenant and he adopted Ramakrishna in spite of it. Why should Venkata Row be treated as in a different position and his covenant be treated as even amounting to a prohibition to his widow. I agree with the District Judge that an implied prohibition is sufficient to prevent a widow adopting; it is not necessary to prove an express prohibition. The Ramnad case Collector of Madura v. Mottoo Ramalinga Sathupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. l : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. 1 : 3 Mad. Jur. 298 shows it and the statement in Sri Balasu Gurulingaswami v. Sri Balusu Ramalakshmamma 22 M. 398 : 21 A. 460 : 26 I.A. 113 : 1 Bom. L.R. 226 : 3 C.W.N. 427 : 9 M.L.J. 67 : 7 Sar. P.C.J. 330 : 8 Ind. Dec. 286 is not intended to lay down a different rule See Shiyali Subraya Chetti v. Calve Subraya Chettiar 37 Ind. Cas. 404 [LQ/MadHC/1916/379] : 21 M.L.T. 315 : 5 L.W. 740. But I consider the circumstances here do not show-any implied prohibition at all. This objection also fails.

37. Before taking up the other objections for consideration, I think it necessary to set out what I consider to be the facts proved in connection with the adoption. Plaintiff swears that some time before the adoption, in 1913, the 1st defendant applied to him for pecuniary help and though the latter denies it I think it is true. Plaintiffs evidence is corroborated by the fact that the 1st defendants brother Sitaramaswami also spoke about money help to plaintiffs then Dewan P.W. No. 111, who is a First Grade, Deputy Collector whose services had been lent by the Government to the plaintiff. His evidence on the point is accepted by the District Judge and there is no reason for us not to do so. Some letters, Ex, BE series, were produced in corroboration of plaintiffs statement, but the 1st defendant denies her connection with those which ask for money. I agree with the District Judge that the letters were sent by her or with her knowledge, for reasons given by him and I find that the 1st defendant did ask plaintiff for money in 1913. The last letter was in December 1913 and it was then that the 1st defendant knew for certain that she could not expect any financial help from plaintiff. We find the idea of the adoption developed shortly thereafter. It may be as D.W. No. 1 says that the idea was first mooted a year previous to the actual adoption, but nothing much was done then regarding it. According to his evidence the present adoption was settled about 20 or 30 days before it took place (see page 421 of his evidence). That would be about the 15th or 20th of January 1914. It is not too far fetched a suggestion, therefore, to make that the idea of carrying out the adoption had some connection with 1st defendants failure to raise money from the plaintiff. That she evidently wanted money is made manifest by the fact that she borrowed some Rs. 2 1/2 lakhs from the Rajah of Venkatagiri in July, 1914, soon after she was in a position to offer him proper security by obtaining half the Gollaprolu Estate absolutely as the result of the adoption. We find the day after the adoption, the adopted boy executing two deeds, one settling half the Gallaprolu Estate absolutely on the 1st defendant Ex. XVII and the other Ex. XVII (a) binding him to give her a maintenance of Rs. 600 a month. It is also in evidence that his marriage with the daughter of 1st defendants brother Sitaramaswami had been arranged to take place on the day after the adoption. It had to be put off on account of the absence of the Maharaja of Venkatagiri but it actually took place early in March. It is the plaintiffs case that these were all conditions attached to the adoption. Defendants contend that the adoption stood by itself, independent of these arrangements which were made separately by the adopted boy of his own free-will and choice. It is in this connexion that a good deal of argument was addressed to us as to when the adoption was "settled." If the word "settled" is to be understood as meaning that the negotiations about the adoption resulted in an understanding that Ramakrishna was to give his son in adoption and the 1st defendant was to take him in adoption it may be that it was "settled" in January as D.W. No. 1 says. It is, however, clear that all the terms were not then settled nor possibly even proposed. It does not follow that the 1st defendant did not mean to ask for the other terms as well. Subsequently we find that before the adoption was actually made it was agreed between the parties that the terms about settlement, maintenance and possibly marriage should be carried out. Defendant witness No. 1 himself speaks to this. Probably there was no talk about the Venkatagiri loan at the time as it was an arrangement to be made with a third party, the Raja of Venkatagiri. Whatever the position may be as regards the marriage of the 2nd defendant, the arrangements about the settlement and the maintenance must have been made sometime before the 6th of February for we find the stamp-papers purchased for the two deeds XVII and XVII (a) on the 6th February along with the stamp for the adoption deed Ex. XVI. It is too much to ask one to believe that the settlement and maintenance arrangements had no intrinsic connection with the adoption; there can be no doubt, as the District Judge remarks in para. 110 of his judgment that the terms embodied in Exs. XVII and XVII (a) were settled as part of the adoption arrangement" before the adoption was made; the whole is one transaction. Whether the marriage is part of that transaction or not is perhaps open to doubt. It seems to me, therefore, we have to judge of the validity of the adoption on the footing that it was carried out by the 1st defendant in part at least with the object of and for the purpose of getting half her deceased husbands estate into her absolute control so that she may dispose of it as she pleased, by either mortgaging it to raise money as she did under Ex. XVIII or by alienating it in toto as she did by Will in favour of one of her nephews. The 1st defendant may well be credited with an intention to benefit her deceased husbands soul as that is always a consideration for an adoption but her main object was undoubtedly to get her husbands property or as much of it as she could get, into her own hands absolutely.

38. On these facts it is urged that the widows motive in making the adoption must be held to be corrupt and improper and the adoption held to be bad in consequence, and that in any case the plaintiff was justified in relying on such motive in refusing his consent to the adoption and that plaintiff having properly refused his consent, the assent of one only, viz., Ramakrishna of two sapindas is not enough to validate the widows adoption. These are, in other words, the three remaining objections raised by the plaintiff. I am inclined to think there is force in these objections.

39. It was in the Ramnad case, Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. l : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. (n.s.) 1 : 3 Mad. Jur. 298 that the Privy Council first laid down that in the Dravida country a Hindu widow not having her husbands authority may nevertheless if authorized by the consent of his kinsmen validly adopt a son to him. There is also in that case the oft-quoted passage that "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." There is nothing in any Hindu texts that deals with assent of kinsmen and, therefore, the law as to the nature and extent of assent that is necessary to validate an adoption must be gathered from the Privy Council and other decisions.

40. The second Privy Council case on the point is the Berhampore case; Sri Viradu Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo 1 M. 69 : 3 I.A. 154 : 11 Mad Jur. 188 : 25 W.B. 291 : 3 Sar. P.C.J. 583 : 3 Suth. P.C.J. 263 : 1 Ind. Dec. 45 ] The decision itself is not in point as the husbands authority was found but there are some observations in it which are of importance. Their Lordships say (page 83 Pages of 1 id.--[Ed.]) "that though the religious duty of adopting a son may be the essential foundation of the law of adoption and the effect of adoption on devolution of property a mere legal consequence it was not impossible 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...to exert over women possessed of, or capable of exercising dominion over, property."

41. This was followed by the Guntur or Vellanki case Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi 1 M. 174 : 4 I.A. 1 : 1 Ind. Jur. 63 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 3 Suth. P.C.J. 353 : 1 Ind. Dec. 116. Hera again it is the observation of the Privy Council on page 190 Pages of 1 id.--[Ed.] that is of importance. Their Lordships say "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 that this Committee...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 sapindas, 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."

42. The next case which went to the Privy Council is the case of Venkamma v. Subramaniam 30 M. 50 : 34 I.A. 22 : 9 Bom. L.R. 89 : 4 A.L.J. 150 : 5 Cri.L.J. 140 : 11 C.W.N. 345 : 17 M.L.J. 114 : 2 M.L.T. 91 where their Lordships accepted the view of this Court that the failure to consult one of the nearest sapindas, could not be justified on the ground that he would have refused if consulted and was fatal to the adoption. In the next case, the Urlam case Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R.18 : 45 I.A. 265 they reiterate that the failure to consult one of the nearest reversioners on the ground that it was known that he would refuse was a futile reason.

43. There is an observation in this case that if the majority of sapindas assent and one refuses his objection may be discounted. As some reliance was placed by Mr. Ramachandra Ayyar for the appellants on it I shall deal with it later on when considering his argument on the point,

44. The latest Privy Council case is that of Kristnayya v. Lakshmipathi 56 Ind. Cas. 391 : 39 M.L.J. 70 : 18 A.L.J. 601; (1920) M.W.N. 385 : 24 C.W.N. 905 : 28 M.L.T. 70 : 43 M. 650 : 12 L.W. 625 : 47 I.A. 99. Their Lordships say "what is required is the consent of a majority of agnates nearest in relationship who are capable of forming an intelligent and honest judgment in the matter and that save in exceptional cases the consent of the nearest sapindas must be asked and if not asked it is no excuse to say that they would have refused." They also observed that if from a corrupt or malicious motives near relative refuses his consent, his dissent may be disregarded.

45. These are the Privy Council cases on the question of widows adoption with the consent of sapindas. It is clear that so far as sapindas are concerned all the nearest ones must be consulted but if any one of them gives or refuses his consent from corrupt or malicious motives his action may be ignored. The rule that a sapindas dissent from interested or improper motives can be discounted is clearly brought out in the case of Parasara Bhattar v. Rangaraja Bhattar 2 M. 202 : 4 Ind. Jur. 393 : 1 Ind. Dec. 412 where it was held in the case of two sapindas, one assenting and the other dissenting, that the adoption was valid as the refusal was from interested and improper motives.

46. The question, however, of the effect of the widows motive on the validity of the adoption is not quite easy to decide. In Bombay it has been held in the Full Bench case in Ramchandra Bhagavan v. Mulji Nanabhai 22 B. 558 : 11 Ind. Dec.954 that the discussion of the widows motive in making an adoption is irrelevant. It is true that there is a difference between that Presidency and this on the law as to widows powers of adoption. In that Presidency in the absence of authority from the husband the widow can adopt a son to him at her own choice if she has not been prohibited by him from adopting, whereas in this Presidency the widow requires the assent of kinsmen before she can adopt. This difference, however, does not seem to me to make any difference on the question whether the Court can canvass the widows motive when she has obtained the consent of the kinsmen when her power is coextensive with that of her husband: see Sri Bahusu Gurulingaswami v. Sri Balusa Ramalakshmamma 22 M. 398 : 21 A. 460 : 26 I.A. 113 : 1 Bom. L.R. 226 : 3 C.W.N. 427 : 9 M.L.J. 67 : 7 Sar. P.C.J. 330 : 8 Ind. Dec. 286. But it would certainly be a very proper ground for a kinsman to consider when he is called upon by the widow for his consent and I conceive that a kinsman would be justified in refusing his assent if he finds that the widows motive in proposing the adoption is in part at least corrupt or improper.

47. In this connection the case in Bhaiya Rabidat Singh v. Indar Kunwar 16 C. 556 : 16 I.A. 53 : 13 Ind. Jur. 98 : 5 Sar. P.C.J. 505 : Rafique and Jacksons P.C. No. 110 : 8 Ind. Dec. 367 was also cited. That case seems to show that even if the widow was actuated by a corrupt motive that in itself will not vitiate the adoption but the condition attached will be invalid. Following the Bombay Full Bench I must hold that the corrupt motive of the widow in stipulating for the gift to her of half her husbands estate cannot be relied on by the Court to declare the adoption invalid.

48. But the position is entirely different when we are considering the question whether there is sufficient evidence of assent of kinsmen to support the adoption in the present case. One argument of the learned Vakil for the appellant based on the observation in the Urlam case Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R. 18 : 45 I.A. 265 (P.C.)] is that if the majority of sapindas consent but one dissents, his dissent may be ignored. Now the nearest reversioners to 1st defendants husband Venkata Rao are plaintiff and Ramakrishna. Plaintiffs sons and Ramakrishnas sons would be the reversioners of the next degree. Plaintiff has refused his assent. His sons are all minors. Of Ramakrishnas sons Gangadhara Rao No. 13 and Rajagopal No. 14 are majors. It was argued that these latter were also consenting parties to the adoption and, therefore, there was a majority in favour of the adoption and the dissent of plaintiff may in consequence be ignored. Now, as a matter of fact, Gangadhara was never consulted as his whereabouts at the time, it is said, was not known. First defendant says: He asked Rajagopal orally and he consented. He is, no doubt, one of the attesting witnesses to the deed of adoption and I think he may be regarded as a consenting party, But I do not think that the Privy Council meant to lay down that a count was to be taken of the votes of both the nearest and the remoter sapindas and the matter of the validity of the adoption decided by the number in favour of adoption irrespective of their position.

49. It seems to me that if the question is to be decided by a majority it must be by a majority of the nearest sapindas and there must be such a substantial majority as to justify the conclusion that the adoption is proper and is made in the bona fide performance of a religious duty. If the refusal to consent of the dissenting minority is shown to be based upon proper and valid grounds, the mere fact of a majority being in favour of the adoption should not, I think, prevail. In the present case there are only two nearest sapindas, one assenting and one dissenting, and no question of majority, therefore comes in. If the dissent of the dissenting sapinda the plaintiff is shown to be unreasonable it may be ignored and I agree with the District Judge that in that case the assent of Ramakrishna alone would be sufficient to validate the adoption. But if, on the other hand, plaintiffs objection is well-founded there can be no doubt on the authorities that the adoption cannot be supported.

50. Several reasons were stated by the plaintiff for his refusal in his reply Ex. EE-11 to the 1st defendant and in the plaint. Many of them are futile. The objection that the boy selected is the son of an enemy of plaintiffs is, I think, not a valid objection as he is already a member of the plaintiffs joint family. The adoption, if anything, makes him a more remote member than he was before. The objection that the adoption would deprive plaintiff of his inheritance is a personal one and it has been always held that such an objection is not a valid one: sea Kallepalle Venkatarama Raju Vs. Kallepalle Bapamma, and Another, . But one objection is, I think, a valid and strong one, namely, that in making the adoption the widow was actuated by the desire to get her husbands property into her own control, so that she may deal with, it as she pleased. As I have stated above it is certainly open to the kinsman to take the widows motive into consideration in refusing his assent. The widows motive was in this particular distinctly corrupt and if a sapinda could not take into consideration such a motive in refusing his assent there will be no way of preventing widows making adoptions, improperly to benefit themselves and their own relations. It was argued that it was not a matter of sapindas concern but only the adopted boys concern whether he keeps the estate he gets by adoption or gives it away. It was also pointed out that the boy adopted here was a major and was thus able to exercise his own choice. I do not think these arguments are of any force; for the question whether the adopted boy should be subjected to a condition to give away the estate to the widow is a matter for consideration before adoption and by the sapindas. If neither the Court nor the sapindas could consider the impropriety of a widows action in making an adoption for the purpose of getting her husbands estate into her control there will be no way of preventing such adoption. Whatever weight one may attach to the religious benefits flowing from an adoption one cannot ignore the secular rights flowing from it. Their Lordships of the Privy Council have pointed this out in the Urlam case Veerabasavaraju Pontulu v. Balasurya Prasad Rao 48 Ind. Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A.L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 Cri.L.J. 184 : 9 L.W. 243 : 21 Bom. L.E. 238 : 1 U.P.L.R.18 : 45 I.A. 265 They have also referred with approval to the opinion of Golap Chander Sarkar in his book on Hindu Law that adoption is more a temporal than a spiritual concern. The temporal side cannot in any case be overlooked.

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