G. APPASWAMT CHETTIAR AND ANR.

R. SARANGAPANI CHETTIAR & ORS.

March 22, 1978

[R. S. SARKARIA AND P. S. KAILASAM, JJ.J

Hindu Law--Power of a llirulu wido•v to adupt-Co11_\'{''lf of .apindos- Consultation lVith agnates-111 capacity of wo111en for independent deci.5io11- Works & Phrases "Poutra, Pouthratlii Sa11tlwthies" lrhetlier includes an aJovted SOil.

One G. Chettiar died leaving a daughter (defendant-I) and grand sons of sister (Appellant).

In 1953 the Ist defendant adopted a son who is the second defendant.

The appellant, filed the present suit challenging the adoption by the Ist defendant of the 2nd defendant and .ilienations of properties by Ist and 2nd defendants, in favour of the 3rJ and 4th defendants. The validity of adoption \Yas questioned by the appellants on various grounds.

The main ground pressed in this Court is that there was want of consent of sapindas of the husband of the Ist <lefendant and that the adoption \vas mrrde for the purpose of depriving the sapindas of their right to prooerty and not on any consideration of spiritual benefit to her husband. The trial court found that the refusal of the appellants to give their consent to adoption was improper and that they had niore or less abused their fiduciary position.

The High Court found that the adoption was true but not valid, since other agnates of husband of the Ist defendant were not consulted and their consent obtained. The court left open the construction of Will of G. Chettiar and the question as to whether the 2nd defendant was t:otitlcd to clai.in under the Will of G. Chettiar.

The Court found that the alienation made in favour of defendants 3 and 4 were valid. On an appeal filed by defendant~ 1 and 2 to the High Court, the .High Court held that the adoption of the 2nd defendant by the 1st defendant was true and valid but agreed that the contention of the appellants that the 2nd defendant as the adopted son of the Ist defendant could not take any bequest under the \Vill, but as Sethu Chettiar the adoptive father of the second defendant took the vested

interet under the Will, the defendant 2 will be entitled to that interest as

the adopted son.

The challenge to the alienation in favour of defendants 3 and 4 \V<t'> 11egatiYed.

Dismissing the appeal

1JELD :

1. The power of a Hindn wido\V to ~1dopt a son to his. husband is \.Vell recognised in Hindu la\V. When the adoption is authorised by the husband of the widow, the widow's power is co-extensive with that of her husband.

Equally when the consent of the husband's kinsmen is obtained the \Vidov/s power is co-extensive \Vith that of her husb3nd. (522 F-Gl

Balusu Gurulingaswa111i v. Ba/usu Ru111alakshnuu11n1a, l.L.R. 22 ?\.fad. 398 appro,'ed.

2. The necessity for obtaining the assent of the sapindas has been laid down in Ramnad ca.."e, ( 1868) 12 l\.1JA 397, 442 referred. The reason for requiring the assent of the sapindas is to see that the adoption was a bonafide performance of the religious duty and not due to any capricious action by the widow.

In the case of a joint fan1ily it is necessary that the widow should consult the elders in the husband's family particularly the father of the husband. But when the family is divided the duty of the widow is to consult the agnates of the husband at the first instance.

If the consent of the nearer agnates is withheld for capricious reasons she can proceed to consult and obtain the consent of remoter agnates.

The appellants were consulted by defendant No. 1 but they refused their consent.

The first appellant who exan1ine:rl himself as P.\V. 1 !'tated that he withheld his consent because he \vas nfrairl that he would lose his reversionary right to the estate.

Jt is also dear that the appellant was negntiating a price through several persons for giving his consent.

The rrial

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Al'l'ASWAMI I'. SARANGAl'ANI (Ka:lasanz, J.) 5 21

Court as \vell as the l-ligh Court rightly ca111c to the conclusion that the appellants improperly \\•ithheld their consent to the adoption.

The contention that the \Vidow \Vas induced by improper n1otive in adopting negatived \Vith reference to the statement of the Ist defendant stating that she had adopted 2nd defendant for the $Piritual benefit of her husband. The statement by her under the stress of the cross-examination that she resorted to adoption for putting an end to the -troubles by the sapindas v,.hich she had in plenty would only disclose how bitter she 1vas against the1n. 1523 A-H. J)-F, ( i, 524 E, F, G-J-r, 52.5El

Ka11akaraf11a1n v. Narasi111lia Rao. ILR (1942) 1\.fad. 173 approycd.

Sri Raja Ra1·11 Sri Krishnayya Rao & A11r. \'.Roja nf Pit1r1p11r, (1928) lLR 51 :ti.1ad. 893; Basha Robida! Singh v. lndar K1111wr,

(1889) IA 16 Cal. 556 (P.C.) referred to.

rhe basis for requiring the assent of the sapin<las is the presumed incapacity of women for independence.

During the 100 years society has advanced and

the presurnption of incapacity of 'ro_n1c11 for independent can no longer be C taken for granted.

Apart from the Constitutional guarantee that there 'vill be no discrin1ination against any citizen on the ground of sex, it is clear that women have established that the presumption of incapacity for in<lepen~ dence is no longer valid. It is \Yell known that \vomen have occupied highest positions and proved themselves equal to men in all professions and other avocations.

In the changed circun1st<inces therefore the basis for the requirement of the assent of kinsmen by a widow due to incapacity no lo11g:er exists and it may well be asked \Vhethcr the s:.1pinda 's a<; sent i~ any more necessary. [529B; l D

The contention of the appellants that 'Puthra Pouthrathi Santhathies' does not include an <idopte<l son negatived. An adopted son is as good as a "Pllthra for all purposes. It may be Jifferent in case of an illegitimate son. [532 F-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2028 of 1968.

(From the Judgment and Decree dt. 21-9'1960 of the Madras High Cerni in Appeal Suit No. 80/60).

R. Thiagrojan, K. Jayara111 & K. Ram Kumar for the appellants.

S. Jlajagopalan, Sunanda Bhandare & Malini Poduval for the respondents.

The Judgment of the Court was delivered by

KAILASAM, J.-This appeal is preferred by the plaintiffs against the judgment of the Division Bench of the High Court of Madras ou certificate.

Appellants are the sister's grand•ons of pne Gopalasami Chettiar.

The first defendant Ramathilakam Ammal is the daughter of Gopalasami Chettiar and the second defenda'nt the adopted son of the first defendant is the sister's grandson of her husband Sethu Cheltiar.

The two defendants are rcspondentlS 1 and 2 in this appeal.

Defendants 3 and 4 are the alic'nees of certain prnperties of Gopalasami Chettiar from Pcspondents 1 and 2.

The suit was filed by the appellants for (I) a declaration that the adoption of the second respondent by the first respondent is not true and valid; (2) declaring that in any cve'nt th~ second respondent as an adopted son could not take the estate of Gopalasami Chettiar either nnder the Will of Gopalasami or by succession; (3) a declaration that

alienations made by re&pondents 1 and 2 on 16th December, 1956 in

favour of respondents 3 and 4 are not binding on the reversioners of Gopalasami Chettiar and will not enure beyond the life-time of the first respondent.

The trial court found that the adoption was true but not valid since the agnates of her husband namely Pattalam Ramasami Chettiar another Ramasami Chettiar and Kuppusamy Chettiar were not consul: B ted ahd their consent obtained.

In view of this finding the trial court left open the construction of will of Gopalasami Chettiar and the question as to whether second respondent is entitled to claim under the will of Gopalasami Chettiar or by way of succession on intestacy.

The court found that the alienation made by respondents 1 and 2 in favour of respondents 3 and 4 is not valid. c

On appeal by respondents 1 and 2 to the High Court, the Court held that the adoption of the second respondent by the first respondent was true and valid but agreed with the contention of the appellants that the second respondent as the adopted son of the first respondent could not take any bequest under the will. But as Sethu Chettiar, the adoptive father of the second respondent, took a vested interest under the will, the respondent will be entitled to that interest as the adopted son. The High Court also dismissed the claim of the appellants for any declaration in respect of alienations made by respo'ndents 1 and 2 in favour of respondents 3 and 4.

In the result the High Court dismiss•od the suit and hence this appeal before us.

The validity of the adoption was questioned by the appellants on E various grounds.

First of all it was contended that Sothu Chettiar, the husband of Ramathilakam Ammal had prohibited her from makil1g any adoption to him.

The trial court found against this plea of the appellants and the finding was confirmed by the High Court. The plea was not put forward before us and therefore need not be considered.

The second ground that was taken was that the adoptio'n was not valid for want of consent of the sapindas of the husband of Ramathilafam F Ammal, the first respondent. The third ground of attack was that the motive for adoption by the widow was improper as the adoption was made for the purpose of depriving the sapindas of their right to property and not on any consideration of spiritual benefit to her husband.

The power of a Hindu widow to adopt a son to her husband is well recognised in Hindu law.

The widow is the surviving half of G the husband and ihe widow adopts according to the texts in her own right though the latter view appears to be that she acts as a delegate or representative of her husband. When the adoption is authorised by the husband the widow's power is co-extensive with that of her husband.

Equally, when the consent of the husband's kinsmen is obtained the widow's power is co-extensive with that of her husband (vide Ba/usu Gurulingaswami v. Ba/usu Ramalakshmamma('). The H power of adoption can be exercised by the widow alone and nobody can compel her to adopt.

When there is no specific authority by

(; I} J.L.R. 22 Mad. 398.

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APPASWAMI v. SARANGAl'ANI (Kailasam, J.)

52 .J

the husbaud her authority is co-terminus with that of her hmband

subject only to the assent of the sapindas. It is not disputed that the congent of the sapindas is necessary in the absence of th~. lmsband's authorisation under the school of Hmdu law to which the parties belong.

The assent of the sapindas cannot. be eq_uated with the authority of the husband as the role of the sapmdas 1s only advisory in nature.

The necessity for obtaining the asent of the spindas has been laid down in the Ramnad(') case where the court held that "where the authority of her Husband is wanting, a widow may adopt a Son with the assent of his kindred in the Dravida Country''. The reason for requiring the assent of the kinsmen 1s stated by their Lordships as follows :-

'The assent of kinsmen seems to be required by reason of the presumed incapacity 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." '

There should be evidence of the assent of the kinsmen as suffices to show that the adoption by the widow was in the proper and bona fide D performance of a religious duty and not due to capricious or corrupt motive.

The reason for the rule requiring the consent of the sapindas is not due to deprivation of propri":tary interest of the rcversioners but for an assurance that the adoption was a bona fide performance of the religious duty and not due to any capricious action by the widow.

In the case of a joint family it is necessary that the widow should consult the elders in the husband's family particularly E the father of the. husband who is her venerable protector, but when the family is divided the duty of the widow is to consult the agnates of the husband at the first instance. If the consent by the nearer agnates is withheld for improper reasons she can proceed to consult and obtain the consent of remoter agnates. ·

The main ground on which the validity of the adoption was ques- F tioned by the appellants is that the adoption is invalid due to want

of consent of the sapindas of the first respondent's husband.

This plea found favour with the trial court though the High Court did not accept it.

The High Court considered the matter elaborately and found that requisite consent was obtained. As we agree with the reasoning and the conclusion arrived at by the High Court it is not necessary for us to set out all the facts and reasons for our conclusion G in detail. It is sufficient to state that amongst the relations of the first respondent's husband the two appellants who are the brother's sons of Sethu Chettiar were admittedly consulted but refused their consent.

Pattalam Ramaswami Chettiar is: an agnate removed by three degrees. Ramasami. Chettiar and Kuppusami Chettiar are two other agnates of Sethu Chettiar. It is. mainly on the ground that these three agnates were not consulted that the trial court upheld the H plea of the appellants that the necessary consent from sapindas had

(I) (1868) 12 MJ.A. 397. 442.

not been obtained.

Paltalam Ramasami Chettiar had attested the adoption deed Ex. B-4 executed immediately after the adoption ceremony was over.

The High Court found on evidence that Pattalam Ramasami Chettiar was present at the adoption and attested the adoption deed and concluded from the circumstances that he ns an attesting witness had knowledge of the purport of the document which he was called upon to attest and therefore it could be reasonably inferred that be was a consenting party to the transaction. Rcoarding Ramasami Chattiar and Kuppusamy Chettiar the High Court found after reference to the evidence of one of the appellants and P.W. 5 examined on their behalf that thQ two agnates wei;, e not proved to be dhayadis of Sethn Chattiar. The High Court rightly pointed out that the attack in paragraph I 0-C of the plaint was that the consent of the sap!ndas has not been obtained but there was no reference to the failure to obtain consent of the sapindas of the husband of the first respondent. The High Court has pointed out that Ramasami Chettiar and Kuppusami Chettiar were admittedly 3 to 4 degrees removed and that Ramasami Chettiar died about JO years ago. There is no whisper in the plaint about the widow having failed to obtain consent of Ramasami Chettiar or Kuppusami Chettiar. The High Court was satisfied that Ramasami Chettiar and Kuppusami Chettiar arc not proved to be the <lhayadis of Sethu Chcttiar.

The court also found that on their own admission the appellants withheld the consent improperly as they did not want to lose the right to property. The widow h.ad consulted Govindasami Chettiar,, Govindarajulu Chettiar, Devarajn Chettiar and Ramasami Chcttiar, the father of the adopted boy, who were all cognates of the first respondent's husband.

The High Court also found that Devarajulu Chettiar, another sister's son of Sethu Chettiar who was examined as D.W.9 .. had given his consent.

The trial court has found that the refusal of the appellants to give their consent is improper and that they had more or less abused their fiduciary position.

The first appellant who examined himself as P.W. 1 stated that he had withl1eld his consent because he was afraid that he would lose his rcvcrsionary right to the estate. It is also clear that the appellant was negotiating a price through several persons for giving his con•ent.

On the facts the trial court as well as the High Court rightly came to the conclusion that the appellants improperly withhefd their consent to the adoption.

On a consideration of the evidence, we agree with the coricltision arrived at by the High Court that the widow had consnlted all the necessary sapindas and that the withholding of the consent by the appellants was due to improper motives which would not have the effect of invalidating the adoption.

It was strongly contended by the learned counsel for the appellants that the widow was induced by improper motive to make the adoption.

It was submitted that the otject of the adoption was to deprive t~~ revcrsioners of their right to proper_ty and not for conferring any spmtual benefit on her husband Sethu Chettiar.

Ramathilakam Ammal, the first respondent, in her evidence admitted that as the '.Jppellants were pestering her with. litigation and demanding money, m order to put an end to these houbles. she resorted to adopfion.

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A • I .,

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She questioned the advocate whether these troubles would be dispelled if she resorted to adoption and the .advocate stated that. the appellants would not be able to make any cla1D1 for the property 1f she adopted and that she should live without anxiety.

In her chief examination she stated that according to the instructions of the Pnrohit she made a request to the parents of the boy in the following terms :-

"Give your son in adoption so that my husband and I shall attain salvation, so that funeral obsequies shall be performed, and so that my family shall be propagated.''

This request was made to the hearing of all the people assembled.

The adoption deed Ex. B-4 recites tliat for the purpose that her husband may derive spiritual benefit and that his soul may rest in peace and the annual ceremonies and the other vedic rites of herself and her husband may be performed properly, and that her husband's lineage may be propagated and perpetuated. and tha.t heir be found for him, she considered it proper to take m adopt10n to her husband the second respondent.

In re-examination the first respondnt was questioned about her statement as to the reasons for her adopt10n and she stated that it was for the spiritual benefit "paralokasthanam" of her husband that she had adopted. Reading the evidence as a whole we are satisfied that the reason for adoption was for spiritual benefit of her husband as seen from her declaration at the time of the adoption ceremony and the recitals in the adoption deed which was prepared at the time of the adoption.

The statement by her on the stress of the cross-examination that she resorted to adoption for putting an end to the troubles by the sapindas which she had in plenty would only disclose how bitter she was against them.

The evidence taken as a whole would not justify our coming to the conclusion that the adoption was due to any improper motive by the widow and not for the spiritual benefit of her husband.

The trial court was of the view that the appellants were anxious to take money and at the same time the first resl'ondent was willing to give but the negotiations failed

becaus~ the parties could not agree on the exact figure and having regard. to the circumstances the. conduct of both the parties is open to cnhcism. The High Court did not record any clear finding as to the motive of the widow in making the adoption but observed that even _conceding that the real .motive of the widow in making the adopt10n was to create an heir for her husband after her demise if that act incidentally created a son for her husband far from such 'act being considered the consequence of an improper motive for making the adoption, it would be an altruistic motive with reference to the adoption.

The learned counsel questioned the correctness of the view tak:n by the High Court and submitted that improper motive

of the widow would vitiate the validity of the adoption.

The law is well-settled that when there is express authority by the H

husba'n~ or when c?nsen~ f the sapindas has been properly obtained the motive of the widow is me!evant. In Kanakll.l'atnam v. Narasimha

16-277SCI/78

Rao,(') it was held that when a widow has received valid authority to adopt, her motive in making the adoption should be ignored, inasmuch as the benefit conferred on her deceased husband by the adoption is in no way affected by her motives.

The Full Bench of the Madras High Court was considering the case in which the widow had valid authority to adopt and held tha.t her motive is entirely irrelevant. It proc•eeded

to state "However, spiteful her action may be towards others the benefit conferred upon her deceased husband by her action is in no . way affected, and the fact that she cannot act without authodty makes the position all the more clear." The decision leads to the inquiry as to how far the motive is relevant in a case in which the widow has not got the requisite authority. In Ramnad case (supra) it was held that the adoption should not be from capricious or from a corrupt motive.

Widow's motive in making the adoption is not really a factor for the emphasis in Ramnad case was regarding the consent of the nearest sapindas. If such consent had been obtained the motive is irrelevant and in the absence of the authority of the husband and without valid consent of tile sapindas the adoption will be invalid whatever her motive may be.

In the circumstances, the motive of the widow would not normally be relevant.

D The relevancy of the motive of the widow became important i\1 a case in which the nearest sapinda refused his consent on the ground that the widow for inlproper motive capriciously wanied to deprive him of his reversionary right.

The question arose whether withholding of consent by tll'e sapinda under the circumstances was justified.

In Sri Raja RaVll Sri Krishnayya Rao and Anr. v. Raja of Pittapur,(') the widow entered into a contract by which it was stipulated that the E reversioner and the boy to be adopted should settle upon the widow absolutely onehalf of her husband's estate to pay the debts and the widow should be given a maintenance of Rs. 500 a month out of the other half which would belong to the son on adoption. The case was decided by a Full Bench of the Madras High Court. Justice Odgers and Justice Jackson (Kumaraswami Sastri J. dissenting) held (1) that on the facts the agreement to execute the settlement and the mainten- F ance deds was a condition precedent to the making of the adoption;

(2) that the motive of the widow in making the adoption was therefore corrupt; (3) that the plaintiff was entitled to refuse his consent on the ground that she capriciously wanted to deprive him of his reversionary right; ( 4) that on account of his refusal, which was proper, there was no consent of the majority of the reversioners, which was necessary to validate the adoption, and ( 5) that in the Madras Presi- G dency, where a widow not having her husband's authority, can adopt with the consent of her nearest reversioners entitled to the inheritance, the Court can scan (a) whether the widow in making the adoption is actuated by proper or corrupt motives and (b) whether the reversioner's refusal to consent is proper or is based upon purely personal grounds.

Kumaraswami Sastri J. in his dissenting judgment expressed the view that on the facts of the case, the adoption was valid and the H widow's motive in making the adoption was not corrupt.

He expres-

(1) I.L.R. (1942) Mad. 173.

(2) I.L.R. 51 Mad. 893.

APPASWAMl v. SARANGAPANI (Kailasam, J.) 527

sed the view that the agreement to adopt was long prior to a'nd was independent of the agpoement to execute the settlement and the maintenance deeds, and moreover as it is legally open to the widow to stipulate with the natural father of the boy to be adopted for her enjoyment of her husband's estate for the full term of her natural life, her a:greement to convert such a right into an absolute estate cf an adequate portion is legal, especially if the ho_y to be adopted is, as in this case, a major.

The learned Judge proce•oded to state that though the debts were not binding on the reversioners there was nothing illegal in a stipulation that the debts which were morally binding on her shou:ct be discharged by some means by the son to be adopted. Regarding the validity of an adoption made by a widow for getting a gain for herself the learned Judge was of the view that where an adoption is made by a widow both in fulfilment of her religious duties and also for getting a gain for herself, the adoption is valid but the agreement for her personal benefit, if not within the limits allowed by law, will be void.

In other words, according to the learned Judge even if the motive was for getting a gain for herself the adoption would not be invalid but the agreement for her personal benefit if not within the limits allowed by law will be void.

This decision was taken up in appeal to the Privy Council and their LOrdship of the Privy Council made certain observations regarding the relevancy of the motive of the widow in making an adoption and the views expressed by Kumaraswami Sastri J. in his dissenting judgment which arc material for the present discussion.

It was contended before the Privy Council that the widow did not make the adoption for the benefit of her husband or upon religious grounds, but merely in order to get hold of a substantial part of the property.

The Privy Council doubted if where the consent of the sapindas has been obtained, the motive of the adopting widow is relevant.

Declining to decide the question as to the relevancy of the motive of the widow their Lordships observed that they did not cons_ider it necessary to decide this question in the present case as they were of the view that there is no ground for impnting corrupt motive to the lady.

They agreed with the view of Kumaraswami Sastri J. that according to Hindu notions unpaid debts are regarded as sins. as much in the case of a woman as in that of a man and agreed with the learned Judge when he stated "I do not think that a widow who makes an adoption and stipulates that the adopted son should pay her debts is doing anything corrupt or immoral".

Further referring to the relevancy of the motive of the widow the Privy Council expressed that it was unnecessary to decide the ques1ion as to whether Kumaraswami Sastri J. was right in holding that when the adoption is made in fulfilment of both her religious du1y and also for the pnroose of getting a gain for herself, the adootion would be vaiid while any arrangement for her personal benefit, if not within the limits actually allowed by law, would he void.

While observing the view expressed by the majority Odgers J. and Jackson J. that as the motive of the widow was a mercenary one and that in itsel1 was sufficient to invalidate the adoption and therefore the ground of saoinda's refu; al was justified, did not take into account the religious asoect of adootion in the eye of a Hindu widow, left the matfer at that bv observing that the dictum of Kumaraswami Sastri J. may requir'e

serious consideration on a future occasion. The learned counsel for the appellants submitted that the occasion has now arisen for determination of this important question.

The courts are bound to presume that the act is done by a widow in the proper and bona fide performance of religious duties and neither capriciously nor from a corrupt motive.

Ordinarily, it is presumed that the motive of the widow in making an adoption is for the performance of religious duties. The question as to whether an improper motive on the part of the widow in making an adoption would invalidate the adoption has been left open by the Privy Council in Sri Krishnayya Rao v. Surya Rao Bahadur Garu,(') but it is significant that the Privy Council hesitated to dissent from the view expressed by Kumaraswami Sastri J. who according to their Lordships was well qualified to speak on the matter under discussion.

Kumaraswami Sastri J. in his dissenting judgment in Sri Raja Ravu Sri Krishnayya Rao and Anr. v. Raja of Pittapur( 2 ) observied that so far as the adoption is concerned, it is a religious sacrament according to Hindu law-givers, like a marriage. The necessity for the adoption of a son in the case of childless Hindus is insisted upon as an act necessary for their salvation and is looked upon as very meritorious.

The learned Judge pointed out that the Bombay School wherein adoption is looked upon as so meritorious that the authority of the husband is unnecessary and such authority according to the leading commentators may be presumed for so meritorious an act.

The learned Judge also referred to the decision of the Privy Council in Blwsba

Rabidat Singh v. Indar Kumar,(') where the adoption was-questioned on the ground that the widow agreed with the natural father that she should retain the whole estate during her life time. T'lle Privy Council expressed its view that it did not render the adoption conditional and did not affect the rights of the adopted son but the condition would be void withont invalidating the adoption.

The learned Judge pointed out that secular motives do come into play and influence persons in making adontion and where an adoption is made by a widow both in fulfilment of her religious dnty and also for the purpose of getting a gain for herself, it seemed to him that the proper thing is_ to hold that the adoption would be valid while any arrangement for her personal benefit, if not within the limits actually allowed by law, wonld be void.

Taking into account the religious and the sacramental view which..is involved in the act of adopti0n and the benefits which the Hindus believe in, namely that an adoption of a son in the case of a childless Hindu is necessary for his salvation and for performing religious rites, it will not be proper to hold that improper motive of the widow for adopting would invalidate the adoption.

To accept such a contention would be to apply modern concepts of law to an ancient sacramental institution of adoption.

We do not feel any hesitation in accepting the view proponnded by Kumaraswami Sast.ri J. in holding that the motive of the widow in making an adoption is irrelevant for

(1) [1935] 69 M.L.J. 3RR. (2\ [1928] I.L.R. 51 Mad. R93.

(3) [1839]1.R.L. 16 Cal. 556(P.C.'

the purpose of. _validating the adoption.

Consequently, the refusal of the consent by sapindas on the ground that the motive of the widow is improper would amount to improperly witbholdirig the consent.

We cannot ignore the development that has taken place in the society at large during the space of one hundred years since the Ramnad case (supra) was decided and 50 years since Kumaraswami

Sastri J. gave expression to his views on the matter.

The basis for requiring the assent of the sapindas is on the ground of the presumed incapacity of a woman.

According to the text of Yagnavalkya in Ch. I, Verse 85 and in Ch. II, Verse 130 it is stated that the father should protect a maiden, husband a married woman and sons their mother as she is not fit for independence.

In Ramnad case (supra) this doctrine was recognised and the Privy Council ruled.

"The assent of his Kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity

Qlf procuring the consent of all these whose possible and reversionary interest in the estate would be defeated by the adoption." 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 D corrupt motive.

Justice Subbarao, as he then was, summed up the law thus in V. T. S. Chandarashekhara Mudaliar (Died) & Ors v.

Kulandaivelu Mudaliar & Ors,(') "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 basis for the assent of' the kinsmen by reason of the presumed incapacity of women for independence seems to. have disappeared.

During the hundred years society has advanced and the presumption of incapacity of women for independence can no longer be taken for granted. "Apart from the Constitutional p:uarantee that there will be no <, liscrimination against any citizen on the ground of sex, it is clear that women have established that the presumption of incapacity for independence is no longer available. It is well-known that women have occupied highest positions and have proved themselves equal to men in all professional and other avocations.

In the changed circumstances therefore the basis for the requirement

of the assent of kinsmen by a widow due to incapacity G no longer exists and it may well be asked whether the sapinda's assent is any more necessary.

Added to this circumstance is the codification of personal law of the Hindus on several branches of Hiiidu law.

The Hindu Marriage Act, 1955 has codified the law on the subject of marriage and divorce. The Hindu Succession Act, 1956 has codified the law relating to intestate succession.

The Hindu Minority and Guardianship Act, 1956 has codified the Jaw relating to minori- H ties and guardianship among Hindus and the Hindu Adoptions and

(I) [1963] (2) S.C.R. 440.

Maintenance Act, 1956 has codified the law of adoption and maintenance.

The codified law has made several changes in the law of adoption.

With the passing of the Hindu Succession Act, 1956, sons and daughters are treated equally in the matter of succession. Equality in status is recognised in the matter of adoptions also.

The Hindu Adoptions and Maintenance Act, 1956, provides for adoption of boys as well as girls.

Formerly, a woman could adopt only to her husband but now she can adopt for herself.

A widow can now adopt a son or daughter to herself in her own right.

No question of divesting of any property vested ii, any person arises for under the Succession Act she is entitled to take th_e property absolutely.

Under the changed circumstances therefore the questions of the sapinda's consent or depriving him of his reversionary interest or the motive of the widow for adoQ!ion do not arise.

But as in this case the second respondent was adopted on 10th September, 1953 i.e. three years before the Hindu Adoptions and Maintenance Act, 1956 came into force, the law that was applicable before the Act came into force will be applicable to the present case.

Though the Act came into force in 1956 and this adoption was in 1953 before the Act came into force, we have to take into account the changed circumstances particularly disappearance of the basis of the requirement of sapinda's assent on the ground of presumed incapacity of the women.

It may also b<} noted that the facts of the present case are different from the case of Sri Krishnayya Rao v.

Surya Rao Bahadur Garu

(supra) where the widow stipulated that half the estate should be given over t(j her absolutely and maintenance provided.

In the present case there has been no stipulation by the widow for any settlement of property or maintenance on her by the adopted son or his father.

The _only ground on which the adoption was attacked was that the motive of the widow was to deprive the sapindas of the property and not for the spiritual benefit of the husband. We have already recorded a finding that the motive for adopting the son was spiritual benefit.

The circumstance that led to the consideration of the motive of the widow in the case referred to namely a provision for settlement of half the properties for discharging debts at the time of the adoption does not arise in this case.

It was next contended on behalf of the appellants that even if the adoption is held to be valid the adopted son would not be entitled to succeed to the property of Gopalasami Chettiar as a legatee under the will.

The plea was that the expression "Puthra Poullfrathi santhathies" would mean only sons born and would not include an adopted son.

The will provided that on the failure of male issue of Ramathilakam Ammal, the first respondent, the estate would go to her female issue and on the failure of such female issue the esfafe wonld go to Sethu Chettiar and his santhathies.

Construing the terms of the will, the High Court came to the conclusion that the testator could not have intended. an adopted son of Ramathilakam Ammal to take after her as her santhathies.

In this view the High Court upheld the contention of the appellants that the second respondent would not be entitled to succeed as the adopted son of Ramathilakam Ammal

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under the will.

But the High Court held in favour of the second respondent on the ground tha.1 aj Ramathilakam Ammal did not bear any child and. as such Ramathilakam Ammal's father's estate devolved on her husband and his santhathies after the death of Ramathilakam Ammal, the property vested in Sethu Chettiar who under the will was entitled to the vested interest.

In the view that Sethu Chettiar took a vested interest, the High Court found that the second respondent who is the adopted son is entitled to the property by devolution.

To consider the question whether the second respondent is entitled to inherit as the adopted son of Ramathilakam which claim was negatived by the High Court and the question whetl1er the High Court was right in its conclusion that the second respondent would be entitled to the legacy as the adopted son of Sethu Chettiar, it is necessary to set out the relevant parts of the will.

Paragrap_h 2 of the will refers to charities specified in List II.

The charities were to be performed by the testator's third wife Seshammal and after her by his daughter Ramathilakam Ammal and after her by her sons and grandsons failing them by her female heirs and if they are not available by Sethu Chettiar, husband of Ramathilakam Ammal and his Putra Pouthra santhathies permanently from generation to generation.

Immoveable properties are described in List III and according to the will after the lifetime of the third wife Seshammal, the immoveable properties specified in List Ill as well as cash and moveable properties should be taken and enjoyed by Ramathilakam Ammal and after her by her Putra Poulhra Santhathies, and if they are not in esse, by her female descendants and in case they too are not in esse, .by his sister's son Sethu Chettiar, the husband of the aforesaid Ramathilakam Ammal and alter him by his santhathies. According to the terms of the will the properties are to be enjoyed by Ramathilakam Ammal and after her by her putra pouthra santhathies.

The contention of the learned counsel for the appellants is that the words "putra pouthra santhathies" would onlv include the sons born to Ramathilakam Ammal and would not inclucle an adopted son.

Support for this contention is sought to be derived by the subsequent clause in the will which provides !hat if putra poulhra santhathies are not in esse, by her 'female descendants.

The High Court accepted the contention holding that if the intention was to include an adopted son it would not have been necessary-to give the estate to Sethu Chettiar, the husband of Ramathilakam Ammal.

From this the High Court inferred that the intention of the testator was that after the failure and in the absence of male issue the property is to be succeeded by the daughters of Ramathi!akarn Ammal.

This would indicate that the property was to be given to the children born of the body of Ramathilakam Ammal.

We are unable to construe the will in the manner in which the High Court has done.

The words "putra pouthra santhathies" would indicate son, grandson and descendants.

We are unable to infer that the word "putra" is confined only to children born of the body Ramathilakam Ammal.

Hindu law has rec.ognised the institution f adopt!on and once a boy is adopted validly he for all purposes 1s recogmsed as the son.

We do not see any justification for excluding an adopted son from the ferm

"putra".

Neither are we satisfied that the term "santhathies" would exclude adopted son find his descendants.

In Tirupathi Naicker and Anr. v. Venkatasubba Naicker and Anr.,(') a Bench of the Madras High Court held that the term "santhathi" is wide enough to include adopted son also.

In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu & Anr. v. Raja Rajeswara Rao & Anr.('j a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would,. fall within the words "purusha santhathi".

Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons.

In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch.

The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons Justice Krishna swami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi", held that the words are Sanskrit in origin but used in the languages of the Madras Presidency.

The word "purusha" is. translated as "male" and "santhathi" as "issue, progeny or descendants".

By aurasa son it is meant "produced from the breast, born of oneself, or legitimate".

According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only.

According to Yagnavalkya an aurasa son is he who is p.roduced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son.

Purusha santhathi though would exclude illegitimate son may include the adopted son.

In the context of the settlement deed because both aurasa as well as adopted son were Included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son.

This case was taken up to the Privy Council and in LXVIII I.A. p. 181 at page 186 the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving ndther a legitimate nor an adopted son.

Though the case does not specifically decide that 'santhathi' would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also.

Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasa son.

The learned counsel for the appellants referred to V.S.Apte's Students' Sanskrit English Dictionary where the meaning of the word (I) [1928] XXVIll Law Weekly p. 819.

(2) [1939] 1 M.L.J. 831.

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"'Santhathi" is given at page 582 as "off spring, progeny".

The learned counsel also referred to the 10th Skandam, 2nd P, art, 61 st Chapter of Srimad Bhagavatham and submitted that the term "pura pouthradhi santhathi" would include only children born of the boay.

We are unable to accept this contention and to read the passages nted as excluding an adopted son.

Further, neither the dictionary meaning nor the passage in Srimad Bhagavatham can .be accegl.ed as laying down principles of Hindu law.

We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandson's and their descendants born out of the body excluding tbe adopted son or his descendants.

The High Court in our view, ws in error in coming to the conclusion that the second respondent 1s not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.

The view of the High Court that the second respondent would succeed to Set!m Chettiar as his adopted son is right but as we have held that the second respondent would succeed under the earlier clause of the will which provides that alter Ramathilakam Ammal her "putra pouthra santhathies" resort need not be had to the subsequent clause in the will which provides for Sethu Chettiar the husband of Ramathilakam Ammal and his descendants taking the property.

In our view, as the second respondent being the adopted son not only of Ramathilakam Ammal but also of her husband Sethu Cheltiar, his rights as the adopted son of Ramathilakam Ammal as well as Sethu Chettiar cannot be denied.

On the failure 'of Ramathilakaln Ammal not having putra pouthra santhathies or female descendants the property would be taken by Sethu Chettiar and his santhathics.

The fact that Sethu Chettiar died during the lifetime of Ramathilakam Ammal would not affect the vesting in favour of Scthu CheUiar's santhathies.

The learned counsel for the respondents s.ubmitted that in any F event the appellants cannot succeed as after the Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal bad, would ripen into an absolute estate under Act 30 of 1956.

This contention was right!)' rejected by the High Court as the life estate to which Ramathilakam Ammal was entitled was under the will of her father and therefore section 14(2) of the Act would be applicable and the life estate would not be enlarged into an abso- G lute estate.

As we have held that the adoption is valid and that the second

respodent is entitled to take the estate of Gopalasami Chettiar under the will he ppellants are not entitled to any declaration in respect of the ahenat10ns made by respondents 1 and 2 in favour of responents 3 and 4 as they are not entitled to any interest in the properties.

The result is that the appeal fails.

Taking into account the circumstances_ of the case, we direct that each party will bear his own costs in this Court.

As the appeal was filed in fornw pauperis and as they have failed, they are directed to pay the court fees leviable in the Memorandum of appeal.

l'.H.P.

Appeal dlimissed.