Appeal No 289 of 1959
Appeal from the judgment and decree dated December 16 1955 of the Madras High Court in Appeal No 231 of 1954
N C Chatterjee KN Bajagopala Sastri VS Venkata Raman and T K Sundara Raman for the Appellants Nos 2 to 6
A V Vishwantha Sastri R Ganapathy Iyer 442 section Gopalaratnam and G Gopalkrishnan for respondent No 1
T section Venkataraman for respondent No 2 1962
April 26
The Judgment of the Court was delivered by SUBBA RAO J
This appeal on a certificate is preferred against the judgment and decree of the High Court of Judicature at Madras confirming those of the Subordinate Judge Madurai in a suit for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid
The following genealogy will be helpful to appreciate the facts and the contentions of the parties Rengatha  __________________________   Dhanappa Kulandaivelu Sr   _______________________ Dhanappa    Renganatha Subramania Kulandaivelu Jr   Shanmugha ChandarashekharaPl widow Guruvammal    Kanniappa P2 Anni D 1   died Feb to P 5 adopted D 2  Renganatha DhanappaD11 SankaralingaD19 BalaguruswamiD4 PalaniandavaD 20 D5 to D10 ShanmughasundaraD12D 21and D 22 Avadaiappa D 14 D 15 to D IS 443 Shanmugha Subramania and Kulandaivelu Jr became divided in 1878 and since the division each of the three
branches of the family was living separately
Kulandaivelu Jr died in the year 1912 possessed of considerable property described in the plaint schedule leaving him surviving his widow Guruvammal Anni who is the 1st defendant as his sole heir
In 1951 Guruvammal Anni with a view to adopt the 2nd defendant to her deceased husband wrote letters to her husband s sapindas who were majors ie plantiffs 1 and 2 and defendants 5 11 12 14 19 and 20 seeking their con sent to her adopting the 2nd defendant
The said sapindas except defendants 12 and 14 refused to give their consent for the reasons mentioned in their replies
Defendant 12 did not receive the letter but the 14th defendant gave his consent to the adoption
On May 25 1951 Guruvammal Anni adopted Kuandaivelu Jr the 2nd defendant as a son to her late husband
On May 30 1951 she executed exhibit A 1 the adoption deed and registered the same on June 12 1951
Chandarasekhara the son of Subramania and his son Kanniappa and three minor grandsons filed O S No 156 of 1951 in the Court of the Subordinate Judge Madurai for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid void and of no effect
Defendant 3 is the natural father of defendant 2 defendants 4 to 21 are the other sapindas of 1st defendant s husband being the descendants of Renganatha
The particulars of their relationship to Kulandaivelu will be seen from the aforesaid genealogy
It was inter alia alleged in the plaint that the adoption made by the 1st defendant of the 2nd defendant without the consent of the sapindas was bad and that the consent given by the 14th defendant was purchased and therefore would not validate it
Defendants 1 2 and 3 filed written statements supporting the adoption they pleaded that the nearer sapindas 444 improperly refused to give the consent the adoption made on the basis of the consent given by the 14th defendant was valid
The learned Subordinate Judge on a consideration of the evidence and the relevant law on the subject came to the conclusion that the 12th defendant though received the notice seeking his consent returned the same that the other sapindas excluding defendant 14 improperly refused to give their consent to the adoption and that therefore the adoption made with the consent of defendant 14 was valid in law
The Subordinate Judge also rejected the contention of the plantiffs that the 14th defendant having regard to his disbelief in the religious efficacy of adoption and the Hindu ritualswas disqualified from giving his consent
In the result he dismissed the suit
On appeal a division Bench of the Madras High Court agreeing with the view of the learned Subordinate Judge came to the conclusion that the sapindas were actuated by improper motives in refusing to give their consent
The second contention directed against the consent given by defendant 14 does not appear to have been seriously pressed before the High Court
In the result the High Court dismissed the appeal with costs
It may be mentioned that the 1st defendant Guruvammal Anni died pending the suit and that the 1st plaintiff died after the appeal was disposed of by the High Court
The other plaintiffs have preferred to present appeal against the judgment of the High Court
The main question raised in this appeal in whether the refusal of the sapindas other than defendant 14 to give consent to the adoption of the 2nd defendant by the last defendant was improper and therefore could be disregarded
Before we consider the legal aspects of the question raised we shall briefly state the relevant facts either admitted or concurrently found b 445 the courts below
Kulandaivelu the last male holder died on January 29 1912 possessed of extensive property
His widow Guruvammal Anni Was managing the said property through power of attorney agents
rho 1st defendant is the 3rd defendant s father s mother s sister s daughter section The 3rd defendant was also helping the 1st defendant in respect of certain transactions during the management of her properties by one of her power of attorney agents
The 3rd defendant and his wife were living with the 1st defendant and the second defendant was born in 1930 in the house of Guruvammal Anni
She was very much attached to him and as he grow up she also performed pujas in company with him
The 2nd defendant studied in the District Board High School Sholavandan taking Sanskrit as his second language and was studying for B A Hons degree in 1951 when he was adopted  In 1951 Guruvammal Anni was about 67 years old and wanted to take a boy in adoption who would not only discharge religious duties to her husband as his son and preserve the continuance of her husband s lineage but would also be of great solace and help to her during the remaining years of her life
With that object she issued notices to the sapindas of her husband intimating them of her intention to adopt the 2nd defendant who according to her had all the necessary qualifications to fulfil the role of an adopted son
The boy proposed to be adopted by her was young healthy educated religious minded and devoted to her having been born in her house and brought up by her
In April 1951 the 1st defendant sent letters Ex
A 1 to the 1st plaintiff Ex
A 10 to the 2nd plaintiff exhibit
A 15 to the 4th defendant and a similar one to the 5th defendant Ex A 18 to the 11th defendant exhibit B 3 to the 12th defendant
exhibit B 52 to the 14th defendant exhibit
A21 to the 19th defendant and exhibit
A 25 to the 20th 446 defendant seeking for their consent to her adopting the 2nd defendant
As already stated all the said persons excepting defendants 12 and 14 replied refusing to give their consent to the proposed adoption the 12th defendant received the letter but returned it unopened and the 14th defendant gave his consent
exhibit A 3 is the reply sent by the lot plaintiff
He has given various reasons for refusing to give his consent to the proposed adoption
As much of the argument turned upon the contents of this letter we would briefly give the said reasons
They are 1 the 1st defendant did not think fit to take a boy in adoption for many years though her husband died 38 years ago and that four years ago there was some talk about it but at the instance of the 1st plaintiff and other agnates she gave up the idea of making an adoption stating that she would not think of adopting a boy to her husband 2 the present attempt to take a boy in adoption was at the instance of the 3rd defendant who was exercising considerable influence over her to take a boy in adoption aged about 20 years and who was not an agnate was opposed to the uniform and invariable custom prevailing in the community and 4 there were eligible boys among his grandsons under the age of 7 years and among his cousin s great grandsons under the age of 18 years and the parents of the said boys had no objection to give any one of them in adoption
He summarizedhis objections in the following words I do strongly object to the adoption of Kulandaiveluyour agent s son not only for the reason that he is aged and ineligible but also for the reasons that he is not agnate and the proposed adoption is prompted by corrupt and selfish decision on the part of your agent
The proposed adoption has behind it the motive of defeating the legitimate reversionary 447 interest of your husband s agnates and is absolutely wanting in good faith
 exhibit A 12 is the reply of the 2nd plaintiff ie the son of the 1st plaintiff
He has practically repeated the objections found in his father s letter while the father stated in his letter that there were eligible boys for adoption among his grandsons and great grandsons of his cousin the 2nd plaintiff only referred to his sons he says in his letter Moreover if you really desire to take a boy in adoption I have got sons who are less than seven years old and who are fit for being taken in adoption
I have no objection whatever to give in adoption anyone of the aforesaid boys whom you like
A 16 in the reply given by the 4th defendant
He has eligible boys who are the great grandsons of the cousin of the 1st plaintiff and who can be given in adoption these are some of the boys mentioned by the 1st plaintiff in his letter
He sets up the case that the 1st defendant s husband had adopted one Sankarlinga Mudaliar even when he was alive 
He refuses to give the consent on the ground that there was already an adoption
exhibit B 5 is the reply given by the 5th defendant and be only adopts the reasons given by his father the 4th defendant
Ex A 1 9 is the reply given by the 11th defendant who is the father of the 14th defendant
His reply is on the same lines as given by the 1st plaintiff
B 4 is the reply given by the 14th defendant he gives his wholehearted consent to the adoption
He has four eligible sons defendants 15 to 18 who could be given in adoption
exhibit
A 22 is the reply of the 19th defendant and exhibit
A 26 that of his son the 20th defendant
The 19th defendant stated that he has grandsons aged less than 8 years and that the parents of the said boys have no objection to give any one of them in adoption
The 20th defendant offers one 448 of his sons to be taken in adoption by the 1st defend ant
The position that emerges from the aforesaid replies is this 1 the 1st plaintiff suggested that any one of his grandsons or his cousin section great grandsons might be taken in adoption 2 the 2nd plaintiff the 19th defendant the 16th defendant and the 20th defendant offered their sons or grandsons as the case may be for adoption 3 the 14th defendant the son of the 11th defendant gave his consent to the adoption 4 to 12th defendant who has only one son though he received the notice did not reply and 5 the 4th and the 5th defendants set up another adoption by the last male holder
In short the elderly members of the branch of Danappa except defendants 4 5 12 and 14 objected to the adoption mainly on the ground that the proposed boy was not a sapinda and that they were willing to give one of their sons or grandsons as the case may be in adoption
The other grounds given by them are similar to those given by the 1st plaintiff
The said grounds indicate that they were anxious that the widow should not take the boy in adoption but should leave the properties to the reversioners
The other reasons given namely the alleged influence of the 3rd defendant over the widow the custom against adoption of a person other than an agnate and the ineligibility of the boy were all found by both the courts below to be untenable
The replies disclose a concerted action on the part of the sapindas to prevent the widow from taking the 2nd defendant in adoption
They had nothing to say against the qualifications of the boy for as we have already noticed he was in every way the most suitable boy from the standpoint of the widow
The only objection therefor was that the boy was not an agnate and that there were eligible boys among the agnates
The question therefore in this case is whether the refusal to give consent to the 449 adoption by the widow of a boy highly qualified in every way on the simple ground that be was not an agnate and the other agnates were available for adoption would be an improper refusal by the sapindas so as to entitle the widow to ignore their refusal and take the boy in adoption with the Consent of the remoter sapinda
Mr NC Chatterjee learned counsel fore the appellants contends that the refusal of the sapindas to give consent in the circumstances of the present case was proper for two reasons namely 1according to Hindu shastras a widow has to take only a sapinda in adoption in preference to one outside that class and 2 the 1st plaintiff did not refuse but gave consent on Condition that one or other of his grandsons or great grandsons of his cousin should be taken in adoption and the said condition is sanctioned by Hindu law
Mr Vishwanatha Sastri learned counsel for the respondents on the other hand contends that the refusal by the agnates to give consent for the adoption was improper for they being the guardians and protectors of the widow were in a fiduciary relationship with the widow and that they should have exercised their discretion objectively and reasonably from the standpoint of the advisability of taking the 2nd defendant in adoption in the last male holder s branch and that in the present case the agnates refused to give consent from selfish motives in order to protect their reversionary interest and therefore the adoption made with the consent of the remoter sapinda was valid
The main question that arises in this appeal is whether the refusal by the nearer sapindas to give consent to the adoption as learned counsel for the respondents described it or the giving of the consent subject to a condition as learned counsel for the appellant calls it is improper with the 450 result the adoption made by the 1st defendant of the 2nd defendant with the consent of the remoter reversioner was valid under the Hindu law
Before we notice the relevent case law and textual authority on the subject it would be convenient to clear the ground
This appeal arises out of an adoption made in the Dravida country and this case is governed by the school of Hindu law applicable to that part of the country
Further we are not concerned here with an adoption in a Hindu joint family but only with one in a divided family
We must therefore steer clear of the ramifications of the doctrine of consent in its impact on an adoption made by a widow in a joint Hindu family
It is not disputed that in a case where the last male holder is a divided member of the family his widow can make an adoption with the consent of a remoter sapinda if a nearer sapinda or sapindas improperly refused to give consent to the adoption
It is also common case that an adoption of a boy by a widow outside the class of sapindas is valid
This controversy centres round the question whether in the present case the conditional consent given by some of the sapindas and the refusal by the others to give consent to the adoption were proper
This question depends for its solution on the answer we give to the following interrelated questions  1 What is the source and the content of the power of the widow to adopt a boy  2 What is the object of adoption  3 Why  is the condition of consent of the sapindas for an adoption required under the Hindu law for its validity  4 What is the scope of the power of the sapindas to give consent to an adoption by a widow and the manner of its exercise  and 5 What are the relevant circumstances a sapinda has to bear in mind in exercising his power to give consent to an adoption  451 It is common place that a widow adopts a boy to her husband and that nobody except a widow can make an adoption to her husband
The reason is that Hindu law recognizes her not merely as an agent of her husband but to use the felicitous Hindu metaphor as his surviving half  see Brihaspati XXV II and Yagnavalkya I 156
In Sarkar Sastri s Hindu Law
8th edn pp 161 162 it is stated that though according to the commentaries the widow adopts in her own right the modern view is that she acts merely as a delegate or repre sentative of her husband that is to say she is only an instrument through whom the husband is supposed to act
Mulla in his book Principles of Hindu Law stated that she acts as a delegate of her husband
The Judicial Committee in Balusu Guralingaswami vs Balusu Ramlakshmamma 1 pointed out that if the consent of the husband s kinsmen has been obtained the widow s power to adopt is co extensive with that of her husband
It is therefore clear that a Hindu widow in making an adoption exercises a power which she alone can exercise though her competency is conditioned by other limitations which we shall consider at a later stage
Whether she was authorised by her husband to take a boy in adoption or whether she obtained the assent of the sapindas her discretion to make an adoption or not to make it is absolute and uncontrolled
She is not bound to make an adoption and she cannot be compelled to do so
But if she chooses to take a boy in adoption there is an essential distinction between the scope of the authority given by her husband and that of the assent given by the sapindas
As the widow acts only as a delegate or representative of her husband her discretion in making an adoption is strictly conditioned by the terms of the authority conferred 1 Mad 398 408 452 on her
But in the absence of any specific authorisation by her husband her power to take a boy in adoption is coterminus with that of her husband subject only to the assent of the sapindas
To put it differently the power to adopt is that of the widow as the representative of her husband and the requirement of assent of the sapindas is only a protection against the misuse of it
It is not therefore right to equate the authority of a husband with the assent of the sapindas
If this distinction is borne in mind it will be clear that in essence the adoption is an act of the widow and the role of the sapindas is only that of advisers
The next question is what is the object of adoption  It would be unnecessary and even be pedantic if we attempted to consider the old Hindu law texts at this very late stage in the evolution of Hindu law on the subject for the law on this aspect had been fully and adequately considered by the Judicial Committee from time to time
It would be sufficient if we noticed a few of the leading decisions on the subject
Sir James W Colvile speaking for the Judicial Committee in The Collector of Madurai vs Moottoo Ramalinga Sathupathy 1 observed The power to adopt when not actually given by the husband can only be exercised when a foundation for it is laid in the otherwise neglected observance of religious duty as understood by Hindoos
The Judicial Committee again speaking through Sir James W Colvile in Sir Raghunadha vs Sri Brozo Kishore 2 restated the principle with some modification thus  It may be the duty of a Court of Justice administering the Hindu law to consider the 1  442
2 18761 LR 3 IA 154 193
453 religious duty of adopting a son as the essen tial foundation of the law of adoption and the effect of an adoption upon the devolution of property as a mere legal consequence
But he hastened to add  But it is impossible not 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 in India to exert over women possessed of or capable of exercising dominion over property
This caution given by the Judicial Committee is relied upon to emphasize the point that right to property of the last male holder is a dominant consideration in the matter of taking a boy in adoption
But if the passage was read along with that preceding it it would be obvious that the Judicial Committee emphasized the performance of a religious duty as an essential foundation of the law of adoption though it did not fail to notice that the devolution of Property was a legal consequence
In Raja Vellanki Venkata Krishna Row vs Venkata Rama Lakshmi Narsayya 1 the Judicial Committee through Sir James W Colvile reiterated the principle that adoption was made by a widow only in a bona fide performance of a religious duty
In Veera Basavaraju vs Balasurya Prasada Rao 2 Mr Ameer Ali delivering the judgment on behalf of the Board appeared to strike a new note and lay more emphasis on property rights
The Board gave as one of its reasons why the consent of divided brothers was required namely
that they 1 1876 LR IA 1 14
2  273 had an interest in the protection of the inheritance
The Judicial Committee observed  lt is true that in the judgment of this Board in the Ramnad case 1 some expressions are used which might imply that the question of reversionary interest forms only a secondary consideration in determining what sapindas  assent is primarily requisite but the remarks that follow as to the right of co parceners in an undivided family to consider the expediency of introducing a new co parcener coupled with the observations of the Board in the subsequent case 4 show clearly that rights to property cannot be left out of con sideration in the determination of the question
It may be said with some justification that till this stage the Judicial Committee had not clearly disclosed its mind but was wavering between two positions namely whether religious duty was the sole object of adoption or whether proprietary interests had an equal or a subordinate place with or to that of a religious object
But in Amurendra Mansingh vs Sanatan Singh 2 the Judicial Committee reconsidered its earlier decisions resurveyed the entire law on the subject and veered round to the view that the validity of an adoption was to be determined by spiritual rather than temporal considerations
Sir George Lowndes observed   it is clear that the foundation of Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites   It can they think hardly be doubted that in this doctrine the devolution of property though recognized as the inherent right 1 1868 12 MIA 397
2 1933 LR 60 IA 242 248
455 of son is altogether a secondary considera tion    Having regard to this well established doctrine as to the religious efficacy of sonship their Lordships feel that great caution should be observed in shutting the door upon any authorized adoption by the widow of a sonless man  
Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property
 This decision is therefore a clear pronouncement by the highest judicial authority of the time that the substitution of a son of the deceased for spiritual reasons is the essence of adoption and the consequent devolution of property is mere accessory to it
Whatever ambiguity there may have still remained it was dispelled by a later decision of the Privy Council in Ghanta China Ramasuabbayya v Moparthi Chenchuramayya 1 wherein Sir Madhavan Nair delivering the judgment on behalf of the Board after a resurvey of the textual authorities and the earlier decisions observed at p 170 Under the Hindu law it is the taking of a son as a Substitute for the failure of male issue
Its object is two fold 1 to secure the performance of the funeral rites of the person to whom the adoption is made and 2to preserve the continuance of his lineage
 Adverting to observation of Mr Ameer Ali in Veera Benavaraju vs Balasurya Prasada Rao 2  he proceeded to state at p 175 The utmost that could be said in favour of the appellants is the statement in the judgment that right to property cannot be left out of consideration in the determination of the question while the spiritual 1 1947 LR 74 IA 162
2 1918LR451A265275
456 welfare of the deceased also is referred to in the course of the judgment
That the above regular view of adoption cannot any longer be maintained appears to be clear from the judgment of the Board  in Amarendra Mansingh v Sanatan Singh 1 Reverting to the object of adoption he remarked at P 179 Their lordships do not desire to labour this point as in their view the following opinion of the Board delivered by Sir George Lowndes in Amarendra s case 1 should be considered to have settled the question finally so far as the Board is concerned
 It may therefore safely be held that the validity of an adoption has to be judged be spiritual rather than temporal considerations and that devolution of property is only of secondary importance
The next question is why does the Hindu law insist upon the assent of the sapindas as a prerequisite for the validity of an adoption made by a widow  A basis for the doctrine of consent may be discovered in the well known text of vasishtas Let not a woman give or accept a son except with the assent of her Lord The following two texts of Yagnavalkya in Chapter 1 verse 85 and in Chapter 2 verse 130 are also ordinarily relied upon sustain the said doctrine Let her father protect a maiden her husband a married woman sons in old ega if none of these other gnatis Kinsmen
She is not fit for independence He whom his father or mother gives in adoption it Dattaka a son given 1 1933 L R 60 1 A 242 248 457 A brief summary of the evolution of the law by subsequent commentators by the process of interpretation of the said two texts is found in the judgment of a division Bench of the Madras High Court in Sundara Rama Rao vs Satyanarayanamurti 1
It was pointed out therein bow Devanna Bhatta reconciled the two seemingly contradictory positions by laying down that a Hindu widow could give her son in adoption if she be authorized by an independent male how by parity of reasoning the said principle was extended to a widow taking a boy in adoption how the same view was expressed by Nandapanditha how Vidyaranyaswami in his Dattaka Mimamsa recognized the validity of an adoption by a widow with the permission of the father etc and how the later commentators relying upon the word etc evolved a thesis that the word father in the text was only illustrative and gradually extended it to other kinsmen
The said doctrine is mainly founded on the state of perpetual tutelage assigned to women by Hindu law expressed so tersely and clearly in the well known text of Yagnavalkya in Chapter 1 verse 85 quoted above
The leading decision which may be described as classic on the subject is what is popularly known as the Ramnad case 2
Sir James W Colvile who has made a real contribution to the development of this aspect of Hindu law observed at p 439 But they the opinions of Pandits show a considerable concurrence of opinion to the effect that where the authority of her Hus band is wanting a Widow may adopt a Son with the assent of his kindred in the Dravida Country
 The reason for the rule is clearly stated at p 442 thus The assent of kinsmen seems to be required by reason of the presumed incapacity 1 ILR 1950 W 461
2 1868 12 MIA 397 442
458 of women for independence rather than the necessity of procuring the consent of all these whose possible and reversionary interest in the estate would be defeated by the adoption
The nature and effect of the consent is stated thus 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 fied performance of a religious duty and neither capriciously nor from a corrupt motive The same principle has been affirmed and restated by the Judicial Committee in subsequent decisions See Raja Vellanki Venkata Krishna Row vs Venkata Rama Lakshmi Narsayya 1 Veera Basayaraju vs Balasurya Prasada Rao 2 Sri Krishnayya Rao vs Surya Rao Bahadur Garu 3 and Ghanta China Ramasubbayya vs Moparthi Chenchuramayya 4
It will be seen that the reason for the rule is not the possible deprivation of the proprietary interests of the reversioners but the state of perpetual tutelage of women and the consent of kinsmen was considered to be an assurance that it was a bona fide performance of a religious duty and a sufficient guarantee against any capricious action by the widow in taking a boy in adoption
The next question which is very important for the present inquiry is what is the scope and content of the power of consent the Hindu law places in the hands of the kinsmen and why does the Hindu law confer the said power on the kinsmen In the Ramnad Case5 the judicial Committee described the father of the husband as the natural guardian of 1 1876 LR 4 IA 1 142 1918 LR 45 IA 265 273
3 1917 LR 74 IA 162
5 1868 12MIA 397 442
459 the widow and her venerable protector
In Raja Vellanki Venkata Krishna Rao vs Venkata Rama Lakshmi Narsayya 1 the Judicial Committee described the sapindas as the family council in Venkamma vs Subramaniam 2  as the natural advisers of the widow in Veera Bagaydraju vs Balasurya Prasada Rao 3 as her natural guardians and protectors of her interest in Sri Krishnayya Rao vs Surya Rao Bahadur Garu 4 as family council natural guardians and protectors of her interest and in Ghanta China Ramasubbauya vs Moparthi Chenchuramayya 5 as the widow s guardians and competent advisers
Whatever phraseology may have been used in the various decisions it is manifest that all of them are only consistent with their exercising fiduciary power having regard to the object for which the said power was conferred on them
The scope of the exercise of the power depends 1 on the nature of the power and 2 on the object for which it is exercised
The nature of the power being fiduciary in character it is implicit in it that it shall not be exercised so as to further the personal interests of the sapindas
The law does not countenance a conflict between duty and interest and if there is any such conflict the duty is always made to prevail over the interest
It would be a negation of the fiduciary duty were we to hold that a sapinda could refuse to give his consent on the ground that the members of his branch or those of his brother s would be deprived of their inheritance
If that was the object of the refusal it could not make any difference in the legal results howsoever the intention was camouflaged
Suppose a sapinda gives his consent on the condition that a member of his branch only should be adopted
In effect and substance be introduced 203 1 1876 L R 4 IA 1 14
3 IA 265 273
2 1906 L R 34 IA 22
4 193569MLJ3488 5 1947 LR 74 IA 162
460 his personal interest in the matter of his assent with a view to secure the properties to his branch
It would only be a matter of degree should he extend the choice of the widow to the divided branches of his family comprehending a large group of sapindas for even  in that case the sapinda seeks to inforce his choice on the widow on extraneous considerations
In giving or withholding his consent in his capacity as guardian or the protector of the widow the sapinda should form an honest and independent judgment on the advisability or otherwise of the proposed adoption with reference to the widow s branch of the family see Sri Krishnayya Rao vs Surya Rao Bahadur Garu 1
Sapinda should bring to bear an impartial and judicial mind on the problem presented to him and should not be served by extraneous and irrelevant considerations
He shall ask himself two questions viz i whether the proposed adoption would achieve the object for which it was intended and ii whether the boy selected was duly qualified
We have already noticed that the object of the adoption is two fold 1 to secure the performance of the funeral rites of the person to whom the adoption is made and 2 to preserve the continuance of his lineage
The sapinda should first answer the question whether the proposed adoption would achieve the said purpose
If the Widows power to take a boy in adoption was not exhausted there would hardly be all occasion when a sapinda could object to the widow taking a boy in adoption for every valid adoption would invariably be in discharge of a religious duty
But is also permissi ble for a sapinda to take objection in the matter of selection of the boy on the ground that he is not duly qualified for being adopted he may rely upon any mandatory prohibitory rules laid down by shastras and recognised by courts in regard to the selection of a particular boy
He may object on 1 461 the ground that the boy belongs to a different caste or that he is married for such an adoption would be invalid
He may also object on the ground that the boy is an idiot that he is suffering from an incurable disease that he is notoriously in bad character for in such cases he would not be suitable to continue the line
Such and similar other objections are relevant to the question of the advisability of the adoption with reference to the widow s branch of the family
In this context an argument is raised to the effect that a sapinda is equally entitled to object to an adoption on the ground that the boy proposed to be adopted is not a sapinda
In a modified form it is further contended that even if there is no legal prohibition against a non sapinda being taken in adoption by a widow the sapinda whose consent is asked for can legitimately relay upon the recommendatory texts of shastras in objecting to an adoption
or imposing a condition on the proposed adoption
This raises the question whether under the Hindu law there is any prohibition against a widow taking a non sapinda in adoption in preference to a sapinda
In Kane s History of Dharmasastra Vol 111 it is pointed out that Dattaka Mimamsa and Dattaka Chandrika quote passages of Saunaka and Sakala to the effect that a man should refer a sapinda or a sagotra to one who is not a sapinda or of the same gotra
The following order is recommended the full brother s son then a sagotra gapinda then a sapinda though not of the same gotra then one not a sapinda though of the same gotra then one who is neither a sapinda nor a sagotra
But the learned author opines that the said order is purely recommendatory and an adoption in breach of it is quite valid
In Mayne s Hindu Law it is stated  According to the Dattaka Mimamsa and the Dattakh Chandrika in the first place the nearest male sapinda should be selected if 462 suitable in other respects and if possible a brother s son as he is already in contemplation of law a son to his uncle
If no such near sapinda is available then one who is more remote or in default of any such then one who is of a family which follow the same spiritual guide or in the case of Sudras any member of the caste
The learned author is also of the opinion that these precepts are merely recommendatory and that the adoption of a stranger is valid even though near relatives otherwise suitable are in existence
It is suggested that this rule of reference is not applicable to sudras and that in their case any member of the caste can be adopted and that among the members of the caste no references are indicated
In Sarkar Sastri s Hindu Law of Adoption the relevant passage of Saunaka is translated thus at p 309 Amongst Brahmins the affiliation of a son should be made from amongst sapindas or on failure of them a on sapinda may be affiliated but any other should not be affiliated amongst Kahatriyas one from their own tribe or one whose gotra is the same as that of the adopters guru or preceptor may be affiliated  amongst Vaisyas from amongst those of the Vaisya tribe amongst Sudras from amongst those of the Sudra tribe  amongst all classes from amongst their respective classes not from others
 This passage lends support to the suggestion made by learned counsel for the respondents that amongst Sudras no preferential treatment is meted out to a sapinda in the matter of adoption
Be it as it may for the purpose of this case we shall assume that according to the commentators a sapinda may have to be referred to a non sapiuda in the matter of 463 adoption
The effect of the a said rules was considered by the Judicial Committee as early as 1878 in Srimati Uma Devi vs Gokoolani Das Vahapatra wherein Sir James W Colvile observed Sir Thomas Strange after recapitulating the rules which ought to guide the discretion of the adopter including the authorities on which the Plaintiff relies says  But the result of all the authorities upon this point is that the selection is finally a matter of conscience and discretion with the adopter not of absolute prescription rendering invalid an adoption of one not being precisely in him who upon spiritual considerations ought to have been referred
 Then the Judicial Committee quoted Sir William Macnaghten in this regard the relevant part of the passage reads    the validity of an adoption actually made does not rest on the rigid observance of that rule of selection the choice of him to be adopted being a matter of discretion The Judicial Committee concluded its decision thus at p 54 Their Lordships feel that it would be highly objectionable on any but the strongest grounds to subject the natives of India in this matter to a rule more stringent than that enunciated by such text writers as Sir William Macnaghten and Sir Thomas Strange
Their
treatises have long been treated as of high authority by the Courts of India and to over rule the propositions in question might disturb many titles
 It may therefore be taken that as early as 1878 the Judicial Committee treated the said rules as 1 1878 LR 5 IA 405253
464 more moral injunction on the conscience of a pious Hindu and that the selection is finally a matter of his discretion
If those injunctions were disobeyed and not followed in 1878 and adoption were made ignoring them it would be unrealistic to rely upon them in the case of adoptions made in recent years
The choice of the boy is with the widow it is a matter of her conscience and it is left to her discretion
The sapindaship is not a legal qualification nor the nonsapindaship a legal dis qualification either
An orthodox lady may give some heed to the religious texts which have fallen into desuetude but she need not do so
It is open to her to select any qualified boy from a large circle
It would be open to a sapinda to say that the boy selected by her is not qualified from physical moral or religious stand point
But it would be incongrous to hold that a sapinda in giviing his advice should enforce the rule of preference which has no legal sanction behind it
This approach would have the effect of enforcing a rule of preferenco which has fallen in desuetude by an indirect process what was a moral injunction on the conscience of the adopter in the olden days would now be made a legal injunction by a circuitous method
If this be allowed a sapinda in the guise of a moral injunction could deprive a widow of her right to take a qualified boy of her own choice in adoption and thus securing the inheritance for himself if she does not adopt an unwanted boy or preserving the estate for a close relative of his if she does
We should therefore hold that a sapinda has no right to refuse to give his consent or impose a condition on ground that the widow should take a sapinda in preference to a non sapinda in adoption
Such a condition would in the modern context be entirely extraneous to the question of the selection of a boy by a widow for adoption to her husband s branch of the family
465 In this context two judgments of the Madras High Court on which strong reliance is placed by learned counsel for the appellants may be noticed
The first is a judgment of a division Bench in Subrahmanyan vs Venkamma 1 wherein the learned Judges held that the adoption made by a widow was invalid because she did not apply for the consent of one of the two sapindas of equal degree on the ground that such an application would have been in vain
Bhashyam Ayyangar T speaking for the division Bench made the following observation at p 63 7 But assuming as the first defendant says that some five years before the adoption the plaintiff wanted her to take One of his sons in adoption there is nothing improper in a sapinda proposing to give his assent to the widow adopting his own son if such son be th e nearest sapinda and refusing to give his assent to her adopting a stranger or a distant sapinda if there be no reasonable objection to the adoption of his own son   These observations are in the nature of obiter for these were not necessary for disposing of that appeal in view of the fact that no consent of the said sapinda was asked for Be it as it may the observations of Bhashyam Ayyangar J deserve the highest respect for his erudition in Hindu law is unquestioned But these observations were made in the year 1903 at a time when the scope of the power of sapindas  consent had not become crystallised
As we have already pointed out the doctrine of fiduciary relationship was gradually evolved by later decisions
The recommendatory character of the preferential right of a sapinda to be adopted was emphasised as early as 1875 and even that moral force gradually ceased to have any persussive effect on an adopter as time passed by
In 1 Mad
466 the modern conditions it would not be proper to allow the old texts to be used by a sapinda to force his son or nephew on an unwilling widow
In Amarendia s case 1 it was finally decided that spiritual reasons are the essence of adoption and that devolution of property is only a consequence of it and therefore the preferential claim of a sapinda to be adopted ceased to have any validity
With greatest respect to the learned Judge We must hold that the said observations have no Longer any relevance in the context of a modern adoption
The next decision which is an unreported one is in Alluri Venkata Narasimharaju vs Alluri Bangarraju 2
In that case a widow made an adoption with the consent of a coparcener of her deceased husband two other coparceners who were asked for permission refused to give the same
The said coparceners suggested that each of them had sons and that they were prepared to give one of their sons in adoption
This offer was not acceptable to the widow
They subsequently intimated their desire to give their own sons in adoption but the widow refused
Having regard to that fact and other circumstances of the case the learned Judges said that the refusal was proper
The learned Judges had not considered the question from the standpoint of the fiduciary power of sapindas but they were influenced mostly by the intransigent conduct of the widow in taking a boy in adoption without considering their proposal with a view to prevent the induction of an outsider into the joint family
That was a case of an adoption by a widow to a deceased member of a coparcenary and it may be that different consideration might arise in such a situation on which we do not propose to express any opinion
Adverting to that judgment Satyanarayana Rao J observed in Sundara Rama Rao v Satyanarayanamurti 3 1 1933 L R 60 IA 242
2 A p p Is Noos 95  226 of 1944 decided on 1571946 1LR 1950 Mad 461
467 No general rule can therefore be laid down that in all cases and under all circumstances the refusal of a sapinda to give his assent to the adoption on the ground that the widow refused to accept the boy of his own in adoption as a proper refusal
The question has to be considered on the facts of each case
 Another division Bench of the Madras High Court consisting of Rajamannar CJ and Balakrishna Ayyar J in Venkatarayudu vs Sashamma 1 held that refusal by a sapinda to give his assent to the proposed adoption by a widow of a boy on the ground that the boy was not a Sapinda or sagotra or a gnati was not proper
It is true in that case the sapinda did not offer his son or make any suggestion that a sapinda or sagotra was available for adoption
The learned Chief Justice speaking for the Court observed As Mayne Hindu law tenth Edition remarks at pages 221 and 222 it is very difficult to conceive of a case where a refusal by a sapinda can be upheld as proper
The practical result of the authorities therefore appears to be that a sapinda s refusal to an adoption can seldom be justified
It may be that in a case where the sapinda refused his consent to the adoption of a boy on the ground that the boy was disqualified say on the ground of leprosy or idiocy the refusal would be proper
In this case we have no hesitation in holding that the refusal by the plaintiffs on the ground that the proposed boy was not a sapinda or sagotra or a gnati was no t proper
 The division Bench did not follow the observation of Bhashyma Ayyangar J Another division Bench of the Madras High Court consisting of Satyanara
yana Rao and Viswanatha Sastri JJ noticed the 1 A 1
R 746
468 observations of Bhasyham Ayyangar J in Sundara Rama Rao vs Satyanrayanamurti 1
Therein Viswanatha Sastri J observed With the greatest deference to that great Judge it seems to me to be questionable whe ther refusal to consent by a sapinda to an adoption by the widow except on condition that his son should be adopted is a valid or proper refusal
 In the present case the High Court followed and accepted the said observations and we also agree with them
We therefore hold that the observations of Bhashyam Ayyangar J are only in the nature of obiter and that they have rightly been treated as such in later decisions
That apart as we have pointed out the said observations are opposed to the principle of fiduciary power which has now been accepted
The result of the foregoing discussion may be summarized thus The power of a sapinda to give his Consent to an adoption by a widow is a fiduciary power
It is implicit in the said power that he must exercise it objectively and honestly and give his opinion on the advisability or otherwise of the proposed adoption in and with reference to the widow s branch of the family
As the object of adoption by a widow is two fold namely 1 to secure the reference of the funeral rites of the person to whom the adoption is made as well as to offer spindas to that person and his ancestors and 2 to preserve the continuance of his lineage he must address himself to ascertain whether the proposed adoption promotes the said two objects
It is true that temporal consideration through secondary in importance cannot be eschewed completely but those considerations must necessarily be only those connected with that branch of the widow s family
1 ILR 469 The sapinda may consider whether the proposed  adoption is in the interest of the wellbeing of the widow or conducive to the better management of her husband s estate
But considerations such as the protection of the sapindas  inheritance would be extraneous for they pertain to the self interest of the sapinda rather than the wellbeing of the widow and her branch of the family
The sapindas as guardians and protectors of the widow can object to the adoption if the boy is legally disqualified to be adopted or if he is mentally defective or otherwise unsuitable for adoption
It is not possible to lay down any inflexible rule or standard for the guidance of the sapinda
The Court which is called upon to consider the propriety or otherwise of a sapinda s refusal to consent to the adoption has to take into consideration all the aforesaid relevant facts and such others and to come to its decision on the facts of each case
Bearing the said principles in mind let us now scrutinize the persons given by the different sapinda is refusing to consent to the proposed adoption with a view to ascertain whether their refusal was proper or not
At an earlier stage of the judgment we have given the reasons given by each one of the sapindas who were approached by the widow for their assent
The 1st plaintiff is the only sapinda who made a general suggest that the widow could make an adoption from one of his grandsons or his cousin s great grandsons
But a scrutiny of his reply discloses that he also looked at the problem presented to him from a personal and selfish angle
His reply reveals a biased mind
He has expressed surprise that the widow should have thought fit to take a boy in adoption for earlier according to him she gave up the idea of making an adoption at the request of the 1st plaintiff and other  agnatem and also stated that 470 when she decided to make the adoption she would select a suitable boy from those of his first cousin
This clearly shows that he was more concerned with the reversioners  inheritance to the estate of the last male holder rather than with the religious benefit that would accrue to him
He then questions the widow s motive which again is an irrelevant consideration
He then relies upon the custom prevailing in their community whereunder an agnate alone could be taken in adoption but no attempt has been made to establish the said custom therefore it may be taken that a false reason is given
As regards the boy proposed to be adopted he vaguely states that he is aged and ineligible for adoption
Finally he declares that he has no objection to the widow making an adoption provided one of his grandsons or the great grandsons of his cousin is taken in adoption
It will be seen that except the vague generalities he cannot point out any particular disqualification attached to the boy either on religious or secular grounds nor can be say that by adopting him the interests of the widow or of the branch of her family would be adversely affected
The entire reply discloses a closed and biased mind against the widow taking a boy in adoption and the proposal made to her to take one of the sapindas is only made with full consciousness on his part that it would be refused
On a consideration of the entire letter we have no hesitation in holding that the 1st plaintiff improperly refused to give his assent to the adoption
The refusal by defendants 4 and 5 was obviously improper for they set up an adoption alleged to have been made by Kulandaivelu the last male holder before his death
Defendant 12 did not care to reply he had only son and was presumably not willing to give his only son in adoption or take sides
Defendant 11 in his reply offered one of his grandsons or of his brother s ie the only son of 471 defendant 12 and the sons of defendant 14
For the reason already stated 12 would not give his son in adoption and defendant 14 had given hit consent to the adoption
Therefore 11 s grandsons were not available for adoption
This leaves only the replies of the 2nd plaintiff and defendants 19 and 20 for consideration
2nd plaintiff wanted his son to be adopted and defendant 19 and his son defendant 20 wanted the sons to be adopted
These three sapindas were clearly actuated by self interest
The replies given by the sapindas appear to us to be a part of their concerted action to prevent the widow from taking a boy in adoption
The sapindas either singly or collectively did not bring to bear their impartial mind on the request made to them but they either refused to give their consent or gave it subject to an improper condition with a view to advance their self interest
They did not consider the advisability or otherwise of the proposed adoption in and with reference to the widow s branch of the family
We therefore hold that their refusal was improper and that the widow rightly ignored it
The next question is whether defendant 14 was legally competent to give his consent to the question
It is contended that defendant 14 was a member of the Dravida Munnetra Kazhagam having no faith in Hinduism and Hindu scriptures and practice and therefore he was incompetent to give his advise on the question of adoption which is a religious act
Learned counsel for the respondents contends that the certificate issued by the High Court is confined only to one question namely whether the refusal by the spinda s to give their consent to the adoption was improper on the facts found and therefore it is not open to the appellants to raise any other question before us
Reliance 472 is placed upon Order XVI r 4 and Order XVIII r 32 of the Supreme Court Rules
Under Order XVI r 4
Where a party desires to appeal on grounds which can be raised only with the leave of the Court the petition of appeal shall be accompanied by a separate petition indicating the grounds so proposed to be raised and praying for leave to appeal on those grounds and the Petition shall unless the Court otherwise directs be heard at the same time as the appeal
 Under Order XVIII r 3 2 the case lodged by a party shall not travel beyond the limits of the certificate or the special leave as the case may be and of such additional grounds if any as the Court may allow to be urged on application made for the purpose
 These two provisions do not proprio vigore lay down that the High Court can issue a limited certificate but they assume that under certain circumstances it can do so
Under article 133 of the Constitution under which the High Court gave the certificate does not empower the High Court to limit certificate to any particular point
If the decree of the High Court is one of affirmance the High Court certifies that the appeal involves a substantial question of law and it has been the practice of some of the High Courts to state the substantial question of law in the certificate issued
Once the certificate is issued and the appeal is properly presented  before this Court the entire appeal will be before it
The assumption underlying the said rules of the Supreme Court may appropriately refer to a certificate issued by a High Court under article 132 of the Constitution whereunder the High Court certified that the case involves a substantial question of law as to the interpretation of the Constitution and where such a certificate is given any party in the case may appeal to the Supreme Court on the ground that any 473 such question as aforesaid has been wrongly decided and with the leave of the Supreme Court on any other ground
 But we are not concerned here with a certificate issued under article 132 of the Constitution
We therefore bold that the entire appeal is before us But it does not follow from the said legal position that we should allow the appellants to raise that plea before us if they had failed to do so before the High Court
The points argued before the High Court are recorded by the learned Judges thus Mr Venkatasubramania Ayyar learned counsel for the plantiffs appellants did not address arguments to us to displace the  findings of the trial Judge on the additional issues though he made it clear that he was not abandoning those any of his clients  conten tions embodied in those issues
He however confined his arguments before us to Issues 1 2 and 3 From this statement it appears that though this point was not argued before the High Court it was not abandoned
We shall therefore deal with the same
The contention is that defendant 14 is a member of the Dravida Munnetra Kazhagam having no faith in Hinduism and Hindu scriptures and practice and therefore he is incompetent to give consent to the adoption which is a religious act
Under the Hindu law a sapinda has power to give consent to a proposed adoption by a widow
Defendant 14 is admittedly a sapinda and there
fore he can ordinarily give his consent to the adoption unless it has been established that he is mentally or otherwise unfit to give his consent
It is not suggested that he is not intellectually competent to give an unbiased advice on the advisability of taking a boy in adoption in the widows branch 474 of the family
But it is said that he has no belief in Hindu scriptures and therefore he cannot give consent to an adoption which is a religious act
The act of giving consent is not a religious act it is the act of a guardian or protector of a widow who is authorised to advise the widow who is presumed to be incompetent to form an independent opinion
His non belief in Hindu scriptures cannot in an way detract from his capacity to perform the said act
That apart defendant 14 in his evidence clearly says that he had considered the qualifications of the proposed boy for adoption and gave his consent
His reasons are   Defendant 2 had faith in God just like Defendant 1
He used to go to the temples and give charities
He had good physical build
He was in a position to take over the management of Defendant s estate immediately
In view of these facts I considered him to be fit for adoption
He was then reading in B A class
These reasons clearly disclose that he applied his mind to the crucial question and gave his consent after satisfying himself about the advisability of taking the boy in adoption
But it is suggested to him in the cross examination that he had no faith in God but be denies it and says  I believe that there is a God but I do not believe in the meaningless religious rites and ceremonies
To further question he answers  I have no faith in taking a boy in adoption
Nor do I believe that a Pierson has atma and that it should get salvation after death
Nor do I believe that there is an thing called hell or paradise
Nor do I believe that a person leaving no son will go to hell
475 The fact that he does not believe in such thing does not make him any the less a Hindu
The non belief in rituals or even  in some dogmas does not ipso facto remove him from the fold of Hinduism
He was born a Hindu and continues to be one till he takes to another religion
But what is necessary is being a Hindu whether he was in a position to appreciate the question referred to him and give suitable answer to it
After going through his evidence we have no doubt that this defendant had applied his mind to the question before him
Whatever may be his personal predilections or views on Hindu religion and its rituals he is a Hindu and he discharged his duty as a guardian of the widow in the matter of giving his consent
In the circumstances of the case his consent was sufficient to validate the adoption
In the result the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The appellants the nearer sapindas of the husband of the 2nd respondent who had adopted the 1st respondent the son of her agent filed a suit for a declaration that the adoption was invalid on the ground that they had properly refused their consent and that the remote sapinda who had given his consent was disqualified from so doing as he did not believe in the Hindu scriptures
The appellants who had been asked for their consent had refused it on the ground that the 1st respondent was not an agnate and that among their grand children or children there were eligible boys whom their parents were willing to give in adoption
The trial court at Madurai as well as the High Court of Madras dismissed the suit holding that the nearer sapindas had improperly refused their consent and that in the circumstances the adoption with the content of the remote sapinda was valid
On appeal by a certificate under article 133 1c
Held that the power of Hindu widow to adopt is coextensive with that of her husband and when her discretion is not limited by her husband it is absolute and is only subject to the assent of the sapindas
Balusu Gurulingaswami vs Balusu Ramalakshmamma Mad398 referred to
The validity of an adoption has to be judged by spiritual rather than temporal considerations and that devolution of property is only
of secondary importance
The Collector of Madras vs Mootoo Ramalinga Sethupathy 1868 12 MIA 397 Sri Raghunadha vs Shri Brozo Kishore
1876 KR 3
IA 154 Raja Vellanki Venkata Krishna Row vs Venkata Rama Lakshmi Narasayya 1876 LR 4 IA 1 Veera Basavaraju vs Balasurya Prasada Rao 1918 LR 4 IA 265 Amarendra Mansingh vs Sanatan Singh 1933 LR 60 IA 242 and Ghanta China Ramasubbayya vs Mooparthi Chanchuramayya 1947 LR 74 IA 162 referred to
441 Held further that consent of sapindas was an assurance of the bonafide performance of a religious duty and the guarantee against capricious action by a widow in taking a boy in adoption and not the possible deprivation of proprietory interests of the reversioners
Sri Krishnayya Rao vs
Surya Rao Bahadur Garu  referred to
The sapindas who are in a fiduciary relation to the widow should exercise their power objectively and without being actuated by their own self interest and that the rules regarding taking only a sapinda in adoption were only recommendatory and the fact that the widow wishes to adopt a non sapinda is no proper ground for withholding consent by a sapindas
Sundara Rama Rao vs Satynarayanamurti ILR  Venkamma vs Subramaniam 1906 LR 34 IA 22 Srimati Uma Devi vs Gokoolanund Das Mahabata 1876 LR 5 IA 40 Alluri Venkata Naratimbaraju vs Alluri Bangarraju vs C A No 226 of 1944 dated 25 7 46 by the Madras High Court and Venkatayudu vs Seshamma  referred to
Observations of Bhashyam Ayyangar J in Subrahamanyam vs Venkamma Mad 127 held to be obiter and not approved
The refusal of consent by the appellants was improper
Order XVI r 4 and Or
XVIII r 3 2 of the Supreme Court do not by themselves enable the High Court to limit the certificate under article 133 of the Constitution to certain grounds and upon this grant of such a certificate the whole appeal was before this Court and all questions urged before the High Court were open
The consent given by the remote sapinda on a proper appreciation of the relevant facts and despite has non belief in rituals he still being a Hindu was valid