(Prayer: Appeal (disposed of on 10-12-1952) against the decree of the Court of the Sub ordinate Judge, Guntur, dated 22-12-1948 in O.S. No. 90 of 1947.)

Subba Rao, J.

This appeal raises the question of the factum and validity of the adoption of the first defendant by the second defendant. The parties are Visas by caste. In or about 1912 Venkayya, the last male-holder died possessed of a large estate more particularly described in schedules A, B and C appended to the plaint. As he had no issue, his wife Ademma, the second defendant inherited his properties. On 10th February 1947 she is said to have taken the first defendant in adoption to her deceased husband. The plaintiff who is the nearest reversionary along with the third defendant, being Venkayya a brothers son, filed O.S. No. 90 of 1947 on the file of the Court of the Subordinate Judge, Guntur, for a declaration that the adoption of the first defendant by the second defendant was not true, valid and binding on the reversionary to the estate of Venkayya. He questioned the factum of adoption and pleaded that even if it had taken place, it was invalid on the ground that the consent of the next reversionary was not taken. The first defendant is the alleged adopted son. The second defendant is Adeinmma, the widow of Venkayya. The third defendant is the son of Venkayyas brother, Guruvayya. The third defendant supported the plaintiff in so far as he questioned the factum and validity of the adoption. Defendants 1 and 2 supported the adoption. They also questioned the correctness of the schedules attached to the plaint. The following issues were framed:



1. Is the adoption of the first defendant by the second defendant true and valid



2. Are the stipulations in the compromise in O.S. No. 30 of 1917 under which second defendant could adopt not valid and binding on second defendant



3. Even so is she bound by them after the death of the third defendants father; if not is the refusal by the plaintiff and third defendant to consent to adoption by her proper



4. Are the schedules correct



5. To what relief is plaintiff entitled

The learned Subordinate Judge found on issues 1 to 3 in favour of defend ants 1 and

2. In the result he dismissed the suit with costs. The plaintiff and the third defendant have preferred the aforesaid appeal.

The first question in the appeal is whether the alleged adoption was true. The first defendant is Venkayyas fathers brothers great grandson. Ex. B.11 is an adoption deed, dated 1st February 1947 where under D. Ws. 4, 5, 6, 7 and 8 and two others describing themselves as Venkayyas chief heirs gave her permission to take a boy in adoption. Ex. B.16 is the registered adoption, deed dated 10th February 1947. This was executed by Ademma in favour of the adopted son. After referring to the contents of Ex. B.11 and another deed of permission given to her on 17th May 1945, it recites that she made the adoption at 8-10 am in Meenalagnam on 10th February 1947. It also recites the taking of the boy from the natural parents, the performance of datta homam , the taking of a photograph, the performance of upanayanam and the change bf the name of the boy. It was attested by D.W. 3 the purohit, D.W. 6, D.W. 7 and eleven others. The photograph mentioned in Ex. B.16 was filed as Ex. B.17. It shows a number of people present and also the giving and taking of the boy. The aforesaid three documents establish that the adoption must have taken place.

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The evidence therefore on the question of actual adoption is overwhelming and is supported by documentary evidence. The learned Subordinate Judge who has seen the witnesses accepted their evidence. We therefore hold that the second defendant took the first defendant in adoption on 10th February 1947 after going through the necessary formalities.

The next question is whether the adoption, even if true, is valid. Learned Counsel for the appellants contended that the adoption was invalid as the consent of the nearest spends the plaintiff and the third defendant was not taken. He would also argue that even if for one reason or other they could be ignored the consent given by the other spends would not be legal consent within the meaning of the decided cases. At this state it may be convenient to notice the law on the subject as it would facilitate the application of accepted principles to the facts of this case. The necessity for the consent of the spends in the case of an adoption by a widow whose husband died divided was laid down by the Judicial Committee in the Ramnad case (12 M.I.A. 297) as follows:

In such a case, therefore, their Lordships think, that the consent of the father in-law, to whom the law points as the natural guardian and venerable protector of the widow, would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father-in law is in existence. Every such 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 t he proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive.

Their Lordships stated the reason for the rule in the following terms:

The assent of the kinsmen seems to be required by reason of the presumed incapacity of woman for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption.

It will therefore be seen that the reason for the rule is not the possible deprivation of the proprietary interests of the reversionary but the state of perpetual tutelage of women under Hindu law. The consent of the kinsmen was considered to be a sufficient guarantee against any capricious action on the part of the widow in taking a boy in adoption. In Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi (1 Mad. 174) [LQ/MadHC/1964/418] the Judicial Committee proceeded to elaborate on the scope of the consent of spends. Their Lordships observed:

All that which this Committee in the former case (12 M.I.A. 397) intended to lay down was, that there would 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 sapid, 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.

This judgment introduces a new concept of a family Council which in its turn gave rise to doubts and conflicts. The concept of a family Council has been explained by Mr. Ameer Ali in Veerabasavaraju v. Balasuryaprasada Rao (41 Mad 998=9 L.W. 243 (P.C.) as follows:

Division does not affect her personal dependence or give her an independent status to alter by her own authority the succession to the estate which she takes as the widow of her husband. She is still dependent for Counsel and protection upon the nearest sapindas of her husband, who are the most closely united to him by ties of blood, or, to use the language of Hindu lawyers by community of corporal particles. The father of the deceased, if still alive, continues to be her natural guardian and venerable protector. He has furthermore a direct interest in the protection of the estate, for in case of her death without leaving her surviving a daughter or the mother of her deceased husband, he has a right to the reversion. His authorization is, therefore, essentially requisite to the validity of an adoption by her to her husband. If there is no father the divided brothers take his place by virtue of the tie of blood as her husband s nearest spends; they become her natural guardians and the protectors of her interests. They also have an interest in the protection of the inheritance. In the absence, then, of the lather the assent of the divided brothers is equally requisite for the validity of the widows adoption. If a majority assent and one refuses, his objection may be discounted. But the absence of their consent or in case there is only one, of his consent, cannot be made good by the authorization of distant relatives remotely connected whose interest in the well being of the widow or the spirit ual welfare of the deceased, or in the protection of the estate is of minute character, and whose assent is more likely to be influenced by improper motives.

The aforesaid passage indicates that His Lordship laid equal emphasis on the protection of the estate as on the spiritual welfare of the deceased. Indeed His Lordship made his meaning clearer when he said at a later state, that rights to property cannot be left out of consideration in the determination of the question. But what is relevant for the present purpose is that this decision seems to indicate that the consent of the remoter relatives is not a substitute for the consent of nearer spends. Bu t this does not consider the further question, namely, what would be the position if the nearer spends refuse to give the consent on improper grounds. That question fell to be considered in Krishnayya v. Lakshmipathi (48 Mad. 650=12 L.W. 625(P.C). There one Narasamma made an adoption on 20th February 1907, with the alleged assent of her husbands sapindas. At the time of the adoption there were five next reversionary, but the adoption was admittedly made with the assent of only one of them and some of the remoter spends. Both the Courts in India had concurrently found that the widow never applied to the remaining four next reversionary for their assent, and had consequently held that the adoption in question was invalid. At page 654, Viscount Cave dealing with the observations of Mr. Ameer Ali in Veera Basavaraju v. Balasurya Prasada Rao (41 Mad. 998=9 L.W. 243 (P.C.) made the following observations:

The reference in the last-mentioned case to a 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 Veerabasavaraju v. Balasuryaprasada Rao (1 Mad. 174) [LQ/MadHC/1964/418] where it was held that the absence of consent on the part of the nearest spends cannot be made good by the authorization of distant relatives whose assent is more likely to be influenced by improper motives. This does not mean that the consent of a near sapid who is incapable of forming a judgment on the matter, such as a minor or a lunatic, is either sufficient or necessary; nor dots it exclude the view that where a near relative is clearly proved to be actuated by correct or malicious motives his dissent may be disregarded. Nor does it contemplate cases where the nearest sapid happens to be in a distant country, and it is impossible without great difficulty to obtain his consent, or where he is convict or suffering a term of imprisonment. The consent required is that of a substantial majority of these agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the matter. It must however be added that, save in exceptional cases such as those mentioned above, the consent of the nearest spends must be asked, and if it is not asked it is no excuse to say that they would certainly have refused.

The Judicial Committee restated with approval the following extract from Raghavendra v. Brojo Kishore (1 Mad. 69):

But it is impossible not to see that there are grave social objections to making the succession of propertyand it may be in the case of collateral succession, as in the prei sent instance, the rights of parties in actual possessiondependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are apt in India to exert over women possessed of or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it.

In the aforesaid extracts the judicial Committee explained the scope of the passage in Veera Basavaraju v. Balasurya Prasada Rao (41 Mad. 998=9 L.W. 243 (P.C.) which without the commentary may appear to lay down an implacable rule of law that a widow cannot look up to the consent of a remoter sapid even if the nearer one is not in a position to give consent or refused to give consent for malicious motives. Madhavan Nair and Jackson, JJ., considered the scope of this rule in Muraharai Brahma Sastri v. Sumitramma (57 Mad, 411 [LQ/MadHC/1933/167] .=39 L.W. 133). There a Hindu widow took a boy in adoption. She did not get the consent of her deceased husbands daughter, one of the two nearest spends and two of the four remoter spends. She did not call a family council to consider the propriety of the adoption. It was found that one of the nearest sapindas capriciously withheld his consent. On the evidence the learned Judges found that the consent obtained by her of a majority of her deceased husbands kinsmen would support the adoption. It was argued that the consent of the spends should be sought in accordance to the decree of propinquity to the last maleholder. Madhavan Nair J. repelled that argument with the following observations at p. 420:

It is no doubt obligatory on the part of the widow to consult the nearest spends but if their consent is capriciously withheld it is not necessary that a family council should be held to consider the propriety of the adoption, or that the reversionary should be consulted in the order of their degree of relationship to the deceased husband, or that even that all the reversionary should be consulted.

After citing the relevant passages from the judgment of the Judicial Committee which we have already extracted above, the learned Judges proceeded to state:

These passages which from the basis of the law on the point, read together, do not make it obligatory that a family council of the agnates should be called by the widow to consider the propriety of the adoption or even that all the reversionary should be consulted before the adoption is made. The nearest spends of course should be consulted; but when it becomes necessary to consult the reversionary all that is wanted is that there should be such evidence of consent as would show that the widow in making the adoption is not acting improperly or capriciously or from a corrupt motive. This would be proved no doubt by showing that the opinion of a substantial majority of the reversionary is in favour of the adoption; but it does not mean that each and every reversionary should be consulted or that if one or two are omitted from consultation the adoption would be necessarily invalid.

This decision was cited with approval by the Judicial Committee in Ramasubbayga v. Chenchuramayya (57 Mad, 411 [LQ/MadHC/1933/167] .=39 L.W. 133), An exhaustive and, if we may say so, an instructive treatment of the subject is found in the judgment of Satyanarayana Rao and Viswanatha Sastri JJ. in Sundararam Rao v. Satyanarayanamurti (I.L.B. 1950 Mad. 461=62 L.W. 591). The question there was whether in the case of an undivided family a widow can travel outside the family and seek the consent of the divided spends when the only coparcener improperly refused and withheld his assent for the valid act of adoption. The learned Judges held that she could do so. They traced the law on the subject and restated the principle governing the doctrine of the consent of spends. The following relevant portion of the head-note brings out clearly their conclusion:

It is well settled in Southern India that a widow in the absence of an authority from the husband, can make a valid adoption with the assent of her husbands spends. The proof of assent on the part of the spends was required to establish the inference that the adoption was made by the widow without any capricious or corrupt motive, or with a view to defeat the interests of this or that sapid. It is not necessary to obtain the consent of all the nearest spends, it is enough if they are all consulted. The duty of the widow to ask for the consent of the nearest spends as far as possible is imperative: In matters of adoption devolution of property is of secondary importance and the validity of the adoption is to be judged and determined by spiritual rather than by temporal considerations.

The doctrine of consent in adoption had not its origin in any specific Hindu law texts. A remote connection may be discovered in the State of the perpetual tutelage assigned to women by Hindu law expressed so tersely and clearly in the well-known text of Yajnavalkya in Chapter 1 Verse 85:

Let her father protect a maiden; her husband a married woman; sons in old age; if none of these other Gnatis (Kinsmen). She is not fit for independence.

Gradually and imperceptibly the Judicial Committee and the High Courts have developed a doctrine of consent affording a suitable substitute in the absence of an express authority by the husband. This doctrine is built upon three principles:



1. The adoption of a son to deceased husband by a widow is a meritorious act conducive to spiritual welfare.



2. The consent of the spends is a guarantee against the widow abusing her positing and acting with capricious or corrupt motives.



3. The validity of the consent depends upon qualitative and qualities test laid down by decisions.

But the real difficulty lies not so much in formulating the test but in applying them to different situations. The words used in various decisions such as kindred, spends, competent advisers, family council etc., have given rise to doubts and difficulties till the Judicial Committee finally and definitely explained the scope of the doctrine in Krishnayya v. Lakshmipathi (43 Mad. 650=12 L.W. 625 P.C.). The general principle is that the Court in judging the adequacy and the validity of the consent given in a particular case will have to take an overall picture of the entire situation and decide whether the spends giving the consent occupy sufficient importance or carry adequate weight in the fictional family Council. Judged from the standpoint of propinquity, age, wisdom, availability, numbers and other relevant considerations, so that the consent given by them may establish the inference that the adoption was made by the widow without any capricious or corrupt motive but only in the interests of her husbands salvation. Difficult and delicate questions may arise in drawing the picture. It is true that the nearest sapid or spends must be consulted; but there may be circumstances where his or their advice is not available. His whereabouts may not be known; he may refuse to give advice: he may improperly refuse to give consent on unjustifiable grounds, he may have left the country for foreign parts with no prospects of early return. The instances are not exhaustive and there may be other instances where a nearest sapid is not available for consultation. Nor is it possible to give a descending or ascending order fixing grades of consent based upon the law of inheritance to the property of the last male-holder or otherwise. In the final analysis it is a question of fact in each case for the Court to come to the conclusion whether the consent of the spends is sufficient to validate the adoption having regard to the conditions laid down in the aforesaid decisions. The only legal test 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 bode fide performance of a religious duty, and neither capriciously nor from a corrupt motive.

Bearing the aforesaid principles in mind we shall now turn to the consent of the reversionary obtained by the widow in the instant case.

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We therefore hold on a consideration of the evidence that Exs. B.7 and B 8 were issued by the 2nd defendant to the plaintiff and the third defendant and knowing their contents they refused to receive them.

So far as the two nearest reversionary are concerned the position therefore is this: third defendant had taken a consistent attitude throughout from the year 1943 that the power of the widow to take a boy in adoption was confined to the compromise decree in O.S. No. 30 of 1917 and that power was exhausted, and finally he improperly refused to receive notice knowing fully it contained a request for his consent to adopt. In his previous letters he gave another reason, for his refusal to give the consent, namely, that there was some kind of arrangement between the 2nd defendants brothers and the boy intended to be taken in adoption. He had failed to establish that fact. It is therefore clear that his previous attitude and, his refusal to receive the notice clearly establish that he improperly refused to give his consent. The plaintiff gave his consent for the 2nd defendant taking a boy in adoption in general terms under Ex. B.6 dated 17th May 1945 though the occasion for giving the same was an attempt on the part of the widow to take his son Ramulu in adoption. Apart from that, we have also found that he refused to take the notice though the contents of the notice were explained to him by D.W.

10. His conduct also amounted to a refusal to discharge his duty towards the widow. In the circumstances the widow was entitled to go to the remoter reversionary for their advice and consent.

In Venkayyas branch, Subbayya is D.W.

8. He is one of the signatories to Ex. B.1

1. Satyanarayana is D.W.

5. He is the son of Punnayya. He is also one of the signatories of Ex. B.1

1. Both of them gave their consent, to the adoption. No member of Krishnayyas or Subbayyas branch is alive.

Now coming to the present generation, they consist of young man and minors. In Ramayyas branch Venkata Kotayya and Chinna Ramayya attended the adoption ceremony. The 3rd defendants sons are minors. Among the plaintiffs sons, except Ramulu the other two are minors. Lakshminarasu and Radha, grandsons of Lakshminarasimham, the brother of Guruvayya, are also minors. It is in evidence that they and their mother were present at the time of the adoption. In Venkayyas branch Satyanarayana is the first defendant. His brothers are all young men. It will therefore be seen that even among those youngsters, some of them who are not minors were present at the adoption ceremony. Learned Counsel for the appellants contended that Ramulu who was a major should have been consulted. But in the circumstances the non-consultation of Ramulu cannot vitiate the adoption for it is not the law that if the nearest spends refused their consent the widow should consult the other spends in the order of the degree of relationship to her deceased husband. Further, Ramulu is the son of Subba Rao and he is living with him as a member of his family. He was the boy whom the widow intended to take in adoption, but his father for one reason or other refused to give him. In the circumstances when the plaintiff refused to give his consent, if the widow did not seek the consent of this young man, though a major at the time, in our view it would not affect the validity of the adoption.

Now taking an overall picture, it is clear that the widow first approached the nearest spends; but they had improperly refused to receive, the notices and give her the requisite consent. She therefore took the consent of the remoter reversionary from the different branches of the family including the two eldest embers of the family, Pitchayya and Punnayya. Having regard to the circumstances of the case we cannot hold that the persons who gave the consent were not competent advisers to the widow. Their advice satisfied the test laid down in the decided eases, namely, 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 and the assent must be such as to show that the act was done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive. We therefore agree with the Court below that the adoption made by the widow with the consent of the spends was valid.

Learned Counsel for the appellants then contended that the authority embodied in Ex. B.11 is inadmissible in evidence as it was not registered. In support of this contention reliance is made on S. 17(3) of the Indian Registration Act. It reads:

Authorities to adopt a son executed after the first day of January 1872 and not conferred by a will shall also be registered.

This objection was not raised in the Court below. We are not therefore justified in allowing the appellants to raise this point before us. Further, even if Ex. B.11 is excluded, there is clear evidence on record by the signatories of the document to establish that they all gave consent for the adoption. We cannot also accept the contention as sound. There is an essential distinction in Hindu law between an authority conferred by the husband on a widow to take a boy in adoption and a consent given to her by the spends after his death. In the case of a husband, he confers a power or authority upon the widow to take a boy in adoption, whereas in the case of spends, their assent is required for the purpose of establishing 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. Therefore it is not correct to describe the assent given by the spends as an authority conferred by them on the widow to take a boy in adoption. S. 17(93) of the Registration Act in our view should be confined only to authorities conferred upon a widow by her husband. Ex. B.11 being only a record of the consent given by the spends, does not require registration.

In the result the appeal fails and is dismissed with costs.