judgement:
Appeal No. 1456 of1966.
Appeal from the judgment ,and order dated April 6, 1964 of the Gujarat High Court in Letters Patent Appeal No. 8 of 1960.
D.U. Shah, P.C. Bhartari and J.B. Dadachanji, for the ' appellants.
S.K. Dholakis and Vineet Kumar, for respondents Nos. 1 (a) to 1(e)and (g).
The Judgment of the Court was delivered by Shah, J.
The facts which give rise to these appeal are few and simple.
The appellant commenced on May 3, 1951 an action in the Court of the Assistant Judge, Morvi, in the former Part 'B ' State of Saurashtra for a decree for Rs. 9,387/5/ against one L. Angha Nathu Jamal and respondents 2 & 3 in this appeal.
The Trial Court decreed the suit on October 17, 1955.
An appeal was filed against the decree in the High Court of Saurashtra at Rajkot.
On November 1, 1956, the High Court of Saurashtra was abolished and the proceedings pending in that Court stood ' transferred to the High Court of Bombay.
On February 21,. 436 1958, Vyas, J., of the High Court of Bombay allowed the appeal.
Against that order an appeal under C1.
15 of the Letters Patent of the High Court of Bombay was filed by the plaintiff but without an order of Vyas, J. certifying that the case was fit for appeal to a Division Bench of the High Court.
On May 1, 1960 under the Bombay Reorganisation Act 1960, the appeal stood transferred to the High Court of Gujarat.
The High Court of Gujarat held that the appeal was incompetent in the absence of an order under section 22A of the Saurashtra Ordinance 2 of 1948 certifying that the case was fit for appeal to a Division Bench.
With certificate granted by the High Court of Gujarat this appeal has been preferred.
The Rulers of Indian States in Kathiawar agreed "to unite and integrate" their territories in one State to be styled the United State of Saurashtra with a common executive, legislature and judiciary.
By Ordinance 1 of 1948 the administration of the covenanting States was taken over by the Rajpramukh.
The Rajpramukh issued, in exercise of power reserved to him by article 9 el.
(3) of the Covenant, Ordinance 2 of 1948 setting up with effect from February 29, 1948, a High Court of Judicature for the State of Saurashtra.
The expression "High Court" was defined in section 3(c) as meaning "the High Court established and constituted by this Ordinance and functioning as the High Court of the Saurashtra State.
By section 21 the High Court was to be the highest Court of appeal and revision in the State and to have jurisdiction to maintain and dispose of such appeals, revision and other cases, civil or criminal, as it may be empowered to do under the Ordinance or any enactment in force in the State.
By section 22 the High Court was also to be a Court of reference with power to hear, revise and determine all eases referred to it.
By Ordinance 5 of 1950 section 22A was added: it vas provided thereby: "( 1 ) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree, or from any.
order against which an appeal is permitted by any law for the time being in force, or from any order under Article 226 of the Constitution of India, made by a single Judge of the High Court, shall lie to a Bench consisting of two other Judges of the High Court.
(2) An appeal shall lie from a judgment of one Judge of the High Court in respect of a decree or order made in exercise of Appellate; Jurisdiction to a Bench consisting of two other Judges of the High Court if the Judge who made the decree or order certifies that the case is a fit one for appeal:" 437 Under the Constitution of India, the territory of the United State of Saurashtra was formed into a Part 'B ' State of Saurashtra.
By the the territory of the State of Saurashtra merged into the State of Bombay.
By section 49 of the States Reorganization Act, 1956, it was enacted that the High Court exercising immediately before the appointed day, jurisdiction in relation to the existing State of Bombay shall, as from the appointed day, be deemed to be the High Court for the new State of Bombay.
By section 50(1) as from the appointed day, the High Courts of all the existing Part B States (with certain exceptions not material) were to cease to function and were abolished.
By section 52 was provided: "The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner 's Court for an existing State".
By section 54 it was provided: "Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, with the necessary modifications, apply in relation to the High Court for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules 'and orders with respect to practice and procedure as are, immediately, before the appointed day, exercisable by the High Court, for the corresponding State: Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, until varied or revoked by rules or orders made by the High Court for a new State, apply with the necessary modifications in relation to practice and procedure in the High Court for the new State as if made by that Court".
Section 59(3) provided that all proceedings pending in the High Court of Saurashtra or in the Court of the Judicial Commissioner for Kutch immediately before the appointed day shall stand transferred to the High Court of Bombay.
By section 119 it was provided: "The provisions of Part II shall not be deemed to have effected any change in the territories to which any L2Sup .CI/70 6 438 law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." Section 127 provided: "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
" In exercise of the power conferred upon the Central Government by section 120 of the , the Saurashtra (Adaptation of Laws on Union Subjects) Order, 1957, was promulgated by the Central Govt.
By cl. 3 of the order it was provided that Saurashtra Ordinance 2 of 1948 shall stand repealed with effect from November 1, 1956.
The High Court of Bombay for the new State added rr.
252 A and 252 B to the Rules of the High Court of Judicature at Bombay, Appellate Side, 1950.
By r. 252 A it was provided: "Rules and orders relating to.
practice and procedure in the High Court in force immediately prior to the appointed day in the High Court of Bombay shall, subject to.
modifications made from time to time thereto, apply to the practice and procedure in the High Court.
" Rule 252 B provided: "Rules and orders relating to practice and procedure in the High Court framed by the High Courts of Nagpur, Hyderabad and Saurashtra and Judicial Commissioner 's Court, Kutch, shall stand abrogated as from the 1st November 1956 in the areas of the new State of Bombay which before the 1st November 1956 were parts of the States of Madhya Pradesh, Hyderabad, Saurashtra and Kutch." The High Court of Gujarat held that the appeal filed by the respondents in the High Court of Saurashtra against the judgment of the Assistant Judge, was and continued to remain subject to the provisions of section 22A of Saurashtra Ordinance 2 of 1948 and an appeal could lie against the decision of Vyas J., only if he certified that the case was fit for appeal to a Division Bench.
Clause 15 of the Letters Patent of the Bombay High Court provided: "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a 439 decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India ACt, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the; first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the same is a fit one for appeal; but . .right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Succes SOTS. " By cl. 15 of the Letters Patent a judgment in an appeal from a civil suit by a single Judge of the High Court of Bombay is subject to appeal to a Division Bench except when the order is made in exercise of the revisional jurisdiction of the Court or in second appeal, or in exercise of criminal jurisdiction, or in exercise of power of superintendence under section 107 of the Government of India Act, 1935 (article 227 of the Constitution).
Vyas, J, decided the appeal sitting as a Judge of the High Court of Bombay.
Prima facie, his judgment delivered in a first appeal from a judgment of the subordinate court was subject to appeal 0 a Division Bench of the High Court of Bombay.
There was clearly an inconsistency between section 22A of the Saurashtra Ordinance 2 of 1948, and cl. 15 of the Letters Patent of the High Court of Bombay.
By virtue of section 22A(2) an appeal lay to a Division Bench of the Saurashtra High Court from a judgment of one Judge "in respect of a decree or order made in exercise of Appellate Jurisdiction when the Judge who made the decree or order certified that the case is a fit one.
for appeal".
The Legislature made no distinction between a first appeal, a second appeal, an appeal from order land an application in exercise of revisional jurisdiction.
But an appeal under cl. 15 of the 440 Letters Patent of the High Court of Bombay in be appeal from filed without the judgment of the Court of First Instance could a certificate of the Judge hearing the appeal.
The right to appeal from a decree or order is a substantive right.
As a corollary thereto, the right to maintain a decree of a Court without interference by a superior Court and subject only to the limitation therein is also a vested right and may be taken away by express enactment or clear implication of the amending statute.
In Colonial Sugar Refining Company vs Irving(x) the Judicial Committee held that a provision which deprives a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right does not regulate procedure.
The Australian Commonwealth Judiciary Act, 1903, came into force on August 25, 1903.
Against the judgment of the Supreme Court of Queens land in an action commenced on Act.
25, 1902, an application was made for leave to appeal to the Judicial Committee and leave was granted on September 4, 1903.
At the hearing of the appeal by the Judicial Committee the respondents applied that the appeal from the judgment of the Supreme Court of Queensland be dismissed on the ground that the power of the Court below to give leave to ,appeal stood abrogated by section 39 of the Australian Commonwealth Judiciary Act, 1903.
The application was rejected by the Judicial Committee.
Lord Macnaghten observed: As regards the general principles applicable to the case there was no controversy.
On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition (to dismiss) is well founded.
On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Judiciary Act, it was conceded that in accordance with a long line of authorities from the time of Lord Coke to the present day the appellants (the Sugar Co.) would be entitled to succeed.
The Judiciary Act is not retrospective by express enactment or by necessary intendment.
And therefore, the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure ? .It seems to their Lordships that the question does not admit of doubt.
To deprive.
a sui tor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure".
(1) 441 In Garikapatti Veeraya vs
N. Subbiah ChoudhurY(1), this Court accepted the principle in Colonial Sugar Refining Company 's case(2).
In the absence of any provision to the contrary, there fore, a right attached to the action when it was commenced in 1951, that an appeal against the decision of a single Judge of the High Court of Saurashtra shall lie only if the Judge deciding the case certified the case to be a fit one for appeal.
But the Saurashtra High Court was abolished from November 1, 1956 and the jurisdiction of the Saurashtra High Court was conferred upon the Bombay High Court.
The case was tried by Vyas, J., not as a Judge of the Saurashtra High Court but as a Judge of the High Court of Bombay.
In terms the restriction placed by section 22A applies to a judgment of one of the Judges of the High Court of Saurashtra: it does not apply to a judgment of a Judge of the High Court of Bombay.
Once the Saurashtra Ordinance 2 of 1948 was repealed and the jurisdiction to try the appeal was conferred upon the High ' Court of Bombay, the right of appeal exercisable by the parties to the litigation decided by the High Court of Bombay was governed by the Letters Patent of that court had not by section 22A of the Saurashtra Ordinance 2 of 1948.
Granting that the incident prescribed by section 22A continued to attach to the action, in terms section 22A of the Saurashtra Ordinance could not operate to restrict a right of appeal exercisable by cl. 15 of the Letters Patent governing the judgments of the Judges of the High Court of Bombay.
The expression "Judge of the High Court" in section 22A of the ordinance for the ' purpose of giving effect to the rule in Colonial Sugar Refining Company 's case(2) cannot be read as meaning a Judge of the High Court of Bombay.
By the clearest implication of the repeal by the Saurashtra (Adaptation of Laws on Union subjects) Order, 1957, promulgated by the Central Government and by the application of cl. 15 of the Letters Patent of the Bombay High Court, the judgment of Vyas, J., was subject to appeal to a Division Bench without an order of the Learned judge certifying the case to be fit for appeal.
In support of his submission counsel for the respondents relied upon the terms of section 52 of the .
But that section only confers upon the High Court of Bombay after November 1, 1956 the original, appellate and other jurisdiction, which was exercisable by the High Court of Saurashtra immediately prior to November 1, 1956, in respect of the territories within the State of Saurashtra.
The section does not incorporate either expressly or by implication the limitations prescribed by section 22A(2) of Saurashtra Ordinance 2 of 1948 into the Letters Patent of the High Court of Bombay.
The jurisdiction original, appellate and other which the High Court of Saurashtra could exercise prior to November 1, 1956, survived to the High Court (1) ; (2)[1905] A.C.360.
442 of Bombay in respect of the territories of the State of Saurashtra, and the appeal filed by the respondent before the High Court of Saurashtra was triable in the exercise of the appellate jurisdiction of the High Court of Bombay, after the case stood transferred to that Court by virtue of sub section
(3) of section 59 of the States Reorganization Act, 1956.
Vyas, J., functioned as a Judge of the High Court of Bombay and his judgments in first appeals were, in the absence of an express provision to the contrary, subject to appeal under cl. 15 of the Letters Patent to a Division Bench without a certificate.
The High Court of Gujarat was right in holding that in respect of the areas of the former Saurashtra State, the High Court Bombay acquired the same jurisdiction which the High Court of Saurashtra possessed.
That however, does not mean that the jurisdiction was to be regulated "with reference to the law which was in force on the appointed day i.e. November 1, 1956".
Section 52 of the preserved the original, appellate and other jurisdiction as under the law in force immediately before the appointed day exercisable in respect of the territories within the State of Saurashtra.
Unless in the exercise that jurisdiction any restriction under the law then in force was by express provision or by clear implication preserved, the provisions of cl. 15 of the Letters Patent must apply.
It is necessary to recall the provisions of section 57 of the , which provide that the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and division courts of the High Court for the corresponding State and with respect to matters ancillary to the exercise of the powers shall, with the necessary modification, apply in relation to the High Court for a new State.
Immediately before November 1, 1956, against the judgment of a single Judge of the High Court of Bombay exercising power in a first appeal, an appeal lay to a Division Bench without a certificate.
The power of a Division Bench to entertain an appeal continued to remain exercisable by the Judges of the Bombay High Court when dealing with cases transferred under section 59(3) to the Bombay High Court from the Saurashtra High Court.
In terms section 57 provides that powers of the Division Bench of the High Court for the corresponding State i.e. the new State of Bombay shall be the same as the powers of the Division Bench under the law in force immediately before the appointed day in the State of Bombay.
A Division Bench of the High Court of BOmbay was competent to entertain an appeal against the judgment of a single Judge deciding a first appeal from the decision of a subordinate court without a certificate of the Judge deciding the appeal.
443 The High Court of Gujarat have made a distinction between 'power" and "jurisdiction", and they have held that when section 52 of the , enacts that the appellate jurisdiction of the High Court of Bombay for the new State of Bombay shall in relation to the Saurashtra area be the same as the jurisdiction which the Saurashtra High Court possessed, it is meant that the High Court of Bombay has the same jurisdiction which the High Court of Saurashtra originally had, and in exercise of that jurisdiction is subject to the same limitations which the High Court of Saurashtra was subject.
We are unable to agree with that view.
Section 52 of the States Reorganization Act, 1956, does not say so, and section 57 of that Act provides to the contrary.
The High Court of Gujarat was also of the view that section 52 of the "crystalizes the law" only with respect to the territorial jurisdiction of each of the areas comprised in the High Court of Bombay, and if the Legislature extended the jurisdiction of the High Court of Bombay and also retained the jurisdiction which the abolished High Court possessed, the result would be "odd and conflicting" there being conflict of jurisdiction.
But that, in our judgment, is a ground for holding that the jurisdiction of the Bombay High Court superseded in case of conflict, the restrictions on the exercise of jurisdiction by the original High Court qua the Saurashtra territory, and not that the jurisdiction of the High Court of Bombay was because of some unexpressed limitation restricted.
The High Court of Gujarat recognised that the conclusion to which they had reached revealed a defect in the administration of justice.
They observed: "The Legislature may have had a good reason for preserving in tact the old jurisdiction of the Saurashtra High Court in regard to pending cases.
However, our conclusion affects cases instituted after the Reorganisation Act came into force.
In our judgment, there is no reason why the litigants from the Saurashtra and Kutch areas should now be treated on a different footing from the litigants in the old Bombay area.
In our judgment, the rights of appeal of litigants in all the areas should now be placed on the same footing.
live would recommend to the authorities concerned to examine this question and, if so advised, to undertake the necessary legislation so as to confer the same rights of appeal to the litigants from the Saurashtra & Kutch areas as are given to the litigants from the rest of the State of Gujarat.
" 444 In our view the conclusion that the restriction on the "old jurisdiction of the Saurashtra High Court" in regard to.
pending cases was preserved by section 52 is erroneous.
_ The does not purport to.
preserve the restrictions upon the exercise of jurisdiction, and no implication arises from the use of the expression "original, appellate and other jurisdiction as under the law in force immediately before the appointed day", that the limitations upon the exercise of the jurisdiction which were existing prior to November 1, 1956, notwithstanding the provisions of section 57 of the were preserved.
The order passed by the High Court of Gujarat is set aside, and the case is remanded to the High Court to be re entered under the original number and to be heard and disposed of according to law.
Costs wilt be costs in the High Court.
V.P.S. Appeal allowed and case remanded.

summary:
Under section 22A(2) of the Saurashtra Ordinance No. 2 of 1948, an appeal lay to a Division Bench of the Saurashtra High Court Tom a judgment of a single Judge of that High Court in the exercise of its appellate jurisdiction, if the Judge certified that the, case was a fit one for appeal.
The , merged the Part 'B ' State of Saurashtra into the State of Bombay, abolished the High Court of Saurashtra as from November 1, 1956, and transferred the proceedings pending before the High Court of Saurashtra to the High Court of Bombay.
Section 52 of the Act conferred upon the High Court of Bombay, after November 1, 1956, the original, appellate and other jurisdiction which was exercised by the High Court of Saurashtra immediately prior to that date in respect of the territories in the State of Saurashtra.
The Saurashtra Ordinance No. 2 of 1948 was repealed with effect from November 1. 1956.
by the Saurashtra (Adaptation of Laws on Union Subjects Order, 1957.
and the Rules and orders relating to practice and procedure framed by the High Court of Saurashtra were abrogated as from November 1, 1956 by rules of the High Court of Bombay made under section 54 of the State Reorganisation Act.
The effect of section 57 of the is that the powers of a Division Bench of the High Court for the new State of Bombay shall be the same as the powers of the Division Bench under the law in force immediately before November 1, 1956, in the State of Bombay.
Clause 15 of the Letters Patent of the High Court of Bombay, which was law in force immediately before November 1.
1956, in the State of Bombay, provides that an appeal from the judgment of a single Judge of the Bombay High Court, in a first appeal from a judgment of the Subordinate Court, could be filed without a certificate of the Judge hearing the first appeal.
Clause 15 of the Letters Patent of the Bombay High Court applied also to the Gujarat High Court which was established as a result of the Bombay Reoganisation Act.
A first appeal against a decree of a subordinate court in Saurashtra, pending in the Saurashtra High Court on November 1, 1956, was transferred to the High Court of Bombay, and disposed of by a single Judge of the Bombay High Court. 'An appeal to the Division Bench under CI.
15 of the Letters Patent of the High Court of Bombay, was transferred to the Gujarat High Court after its establishment, but the Gujarat High Court held that the appeal was incompetent under section 22A of the Saurashtra Ordinance No. 2. of 1948 without a certificate from the single Judge.
435 In appeal to this Court, HELD: (1) It was only in the absence of any provision to the contrary, that a right attached to the action when it was commenced in the subordinate court in Saurashtra that an appeal against the decision of the single Judge of the High Court of Saurashtra in appeal, shall lie only if the single.
judge certified that it was a fit case for appeal to a Division Bench.
Garikapatti Veerayya vs
N. Subbiah Choudhury; , , referred to.
[443 A B].
(2) But, from November 1, 1956, the Saurashtra High Court was abolished, the Saurashtra Ordinance No. 2 of 1948 was repealed, and the jurisdiction of the High Court of Saurashtra was conferred upon the Bombay High Court.
Therefore, the single Judge of the High Court who heard the first appeal, heard it not as a Judge of the Saurashtra High Court, but as a Judge of the Bombay Court.
[443 B C] (3) Section52 of the does not mean that the jurisdiction conferred upon the Bombay High Court in respect of the territories within the State of Saurashtra was to be regulated with reference to the law which was in force on November 1, 1956 in Saurashtra.
Therefore, it does not incorporate either expressly or by implication the limitations prescribed by section 22A(2) of the Saurashtra Ordinance into the Letters Patent of the High Court.
[443 G H; 444 C D] (4) Since the restriction placed by section 22A of the Ordinance applied only to a judgment of a single Judge of the High Court of Saurashtra and could not apply to a judgment of a single Judge of the Bombay High Court, and could not operate to restrict a right of appeal exercisable under CI.
15 ' of the Letters Patent, the judgment of the single Judge of the Bombay High Court was, under section 57 of the , subject to appeal to a Division Bench without a certificate of the single Judge.
[443 D F]


judgement:
Appeal No. 1795 of 1966.
Appeal from the judgment and decree dated March 1, 1962 of the Madras High Court in Appeals Nos. 66 and 166 of 1958.
S.T. Desai, B. Datta,, K. Jayaram, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.
A. K. Sen, T.V. Balakrishnan 'and Naunit Lal, for respon dents Nos. 1 and 2.
R. Gopalakrishnan, for respondents Nos. 5, 7 and 8.
The Judgment of the Court was delivered by Bhargava, J.
This appeal arises out of a suit for partition instituted by the two appellants claiming a share in the joint Hindu family property as successors in interest of one Kothandaraman alias Kumarasami Naidu who died in the year 1943.
When Kothandaraman died, he, his father Rangappa Naidu, his uncle Ramasami Naidu, and the latter 's son Kullan alias Kumaraswami formed a Joint Hindu family.
Kothandaram died leaving his widow Nagarathinammal who was plaintiff No. 2 and is appellant No. 2 in this appeal.
His father Rangappa Naidu was also alive, but he died in the year 1944.
On the death 'of Rangappa Naidu, Ramasami Naidu, his brother, 'became the 'karta ' of the joint family which included his son, Kullan alias Kumaraswami, 501 and plaintiff No. 2, the widow of Kothandaraman.
Ramaswami Naidu executed a will on 11th July, 1949 bequeathing portions.
of the joint family properties to various members of the family, because he was in actual possession of all the properties.
Subsequently, in the same year 1949, Ramasami Naidu died.
Some of the properties were transferred by persons who took ' possession of the properties in accordance with the will of Ramasami Naidu.
Then, according to plaintiff No. 2, she, on 26th January, 1955, adopted plaintiff No. 1, Tahsil Naidu, as a son and partition of the property was claimed on the basis that, after his adoption, Tahsil Naidu was entitled to a half share in the properties of the joint family.
It was further urged that the will made by Ramasami Naidu was void and ineffective, and that the various transfers of the properties were also not binding on him.
The suit was instituted by the two plaintiffs because defendant No. 1, Kullan alias Kumaraswami Naidu, who was under the guardianship of his mother Jayammal, defendant No. 2, refused to recognise the adoption, challenged its validity and did not accede to the request to give a share in the property to the plaintiffs.
The main question that arose in the suit for decision was whether the adoption of plaintiff No.2 by plaintiff No. 2 was valid.
It was the admitted case of the parties that Kothandaram had died without giving any authority to his wife Nagarathinammal to adopt a son.
The claim on behalf of the plaintiffs was that, even in the absence of authority from her husband, plaintiff No. 2 was entitled to adopt a son after obtaining the consent of the nearest sapindas of her husband The case put forward was that she gave a notice to Jayammal and Kullan minor to give their consent to the adoption of plaintiff No. 1 who was the son of Damodaran, brother of plaintiff No. 2, and who was further the son of the real sister of Kothandaraman.
However, without waiting for any consent being given by jayammal, plaintiff No. 2 proceeded with the adoption after obtaining consent of the next three nearest Sapindas, Rangappa Naidu, Devarajalu and Umavadan alias Rangan.
Though, at the first stage, there was some dispute about the pedigree, by the time the case came up before the High Court the pedigree, which was set up on behalf of the appellants in the plaint, was accepted as correct.
According to that pedigree, when Kothandaraman died, and even when the adoption took place, his grand mother Ammakutti Ammal was also alive.
She, in fact, died after the institution of the suit.
Apart from her, Kullan and Jayammal, the nearest Sapindas of Kothandaraman at the time of adoption were Rangappa Naidu, Devarajalu and Umavadan.
The plaintiffs therefore, claimed that the adoption was made with their consent as, under the Hindu Law applicable in Madras, it was not necessary to obtain the consent: 502 either of the minor Kullan, or of the two females Jayammal, widow of Ramasami Naidu, and Ammakutti Ammal, grandmother of Kothandaraman.
The suit was resisted on behalf of the defendants challenging the validity of the adoption on two grounds.
The first ground was that, in fact, the consent to the adoption was not obtained from Rangappa, Devarajalu and Umavadan as pleaded on behalf of the plaintiffs and, in any case, if the consent was obtained, it was not properly given by those Sapindas after exercising their independent judgment as required, so that.
the consent could not validate the adoption.
The second ground was that, admittedly, Ammakutti Ammal, the grandmother of Kothandaraman, was also a Sapinda and nearer in degree to the three persons consulted.
Since her consent.
was never obtained, the adoption must be held to have been resorted to without the consent of the nearest sapinda and was, consequently, invalid.
The trial Court held that the adoption was valid, and consequently, granted a preliminary decree for partition.
The High Court of Madras, in appeal, differed from the trial Court.
On the first question, the High Court did not express a definite opinion in its judgment and contended itself with stating that it is probable that the adoption was thought of by plaintiff No. 2 more with an idea of getting the properties than being actuated by a genuine religious motive and, further, that it was doubtful whether the plaintiffs had succeeded in proving that the adoption was made with the consent of the three sapindas, Rangappa Naidu, Devarajalu and Umavadan.
On the second point, however, the High Court accepted the plea put forward on behalf of the defendants that it was necessary for the adoption to be valid that the consent of Ammakutti Ammal, the grand mother of Kothandaraman, should have been obtained even though she was a female Sapinda.
The High Court repelled the contention of the plaintiffs appellants that it was not necessary to obtain the consent of female sapindas for a valid adoption and that Hindu law only requires consent of the nearest male sapindas.
On this view, the High Court allowed the appeal, set aside the decree passed by the trial Court and dismissed the suit of the plaintiffs.
Consequently, the plaintiffs have come up to this Court in this appeal by certificate under article 13 3 of the Constitution.
On the first point, Mr. S.T. Desai appearing on behalf of the appellants, drew our attention to the decision of this Court in V. T.S. Chandarasekhara Mudaliar and others vs Kulandaivelu Mudaliar and others(1) which appears to be the only case in which this Court had occasion to lay down the principles which (1) ; 503 applied to adoption in Madras.
The Court, ,in dealing with that case, reviewed the various decisions given by the Madras High Court and the Privy Council and indicated the principles that must be applied when, judging the effect of consent of sapindas on the validity of an adoption.
In that case, a conditional consent had been given; by some of the sapindas, whereas some others had refused to give consent to the adoption, and the controversy centered round, the question whether the consent given by some and refusal by ' others was proper.
The Court indicated that such a question depended for its solution on the answer to five interrelated questions which were formulated as follows : (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 ? The Court took into consideration the decisions till then rendered which had bearing on these questions and, consequently, we do not consider it at all necessary to again discuss all those cases.
On the first question, the Court held that a widow, either authorised by her husband to take a boy in adoption, or after obtaining the assent of the sapindas, has full discretion to make an adoption, or not to make it, and that discretion 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, she acts as a delegate or representative of her husband and her discretion in making the adoption is strictly conditioned by the terms of the authority conferred on her by her husband; but, in the absence of any specific authority, her power to take a boy in adoption is coterminus with that of her husband, subject only to the assent of the sapindas.
Dealing with the next question, the Court held that it may safely be held on the basis of the authorities that 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.
It is ' the answer to the third and the fourth questions with which we are primarily concerned.
On the third question, the Court 504 held that the reason for the rule of obtaining consent of the sapindas 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.
Dealing with the fourth question, the Court quoted with approval the observations of Raiamannar, C.J., in Venkatarayudu vs Sashamma(1) to the following effect : "As Mayne (Hindu law, tenth Edition) remarks 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 not proper." Ultimately, the Court summarised its decision as follows : "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, name by, (1) to secure the performance of the funeral rites of the person to whom the adoption is made as well as to Offer pindas 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, though secondary in importance, cannot be eschewed completely but those considerations must necessarily be only those connected with that branch of the widow 's family.
The sapinda may consider whether the proposed adoption is in the interest of the well being of the widow or conducive to the better management of her husband 's estate.
But considerations ' such as the protection of the sapindas ' (1) 505 inheritance would be extraneouS, for they pertain to the self interest of the sapinda rather than the well being 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.
" It is these principles which we are called upon to apply in the present case to decide how far the requirements for a valid adoption have been satisfied when plaintiff No. 2 adopted plaintiff No. 1.
When this aspect of the case was being discussed in Court, learned counsel appearing for the respondents put forward the argument that, in the present case, the evidence shows that the motive of the widow, plaintiff No. 2, or, in any case, her dominant motive in making the adoption; was to ensure that a half share in the property of the family comes into the possession of herself and her adopted son, and that the adoption was not made with any spiritual considerations or for the performance of any religious duty.
Learned counsel, thus, wanted to challenge the motive of plaintiff No. 2 in adopting plaintiff No. 1.
On the other side, the argument was that, once the consent of the nearest sapindas is obtained by a widow before making an adoption, the question of motive of the widow making the adoption becomes irrelevant and should not be inquired into.
The principles laid down in the case cited above show that the consent of a kinsman was considered to be an assurance that the adoption was in pursuance of a bona fide performance of religious duty and would be a sufficient guarantee against any capricious action by the widow in taking the boy in adoption.
This principle laid by this Court, thus, does indicate that the motive of a widow need not be enquired into, because the very fact of the consent being given by the sapindas is a guarantee that the adoption is being made for proper ' reasons.
In the present case, however, we find that, even on facts, the submission made on behalf of the respondents cannot be accepted, because there is evidence to show that the adoption was made by plaintiff No. 2 with the object of proper performance of ceremonies for the benefit of her deceased husband and other ancestors, though plaintiff 506 No. 2 also had in mind the advantage she would receive because her own adopted son would obtain rights to the property and she may be better looked after.
The intention of the widow, in making the adoption, was clearly expressed by her in 'the notice Ext.
A 2 sent on 6th December, 1954 by her counsel to defendant.
2 Jayammal who was .the guardian of defendant No. 1, Kurta Naidu, the latter being the person who was then holding the family property.
It was stated in that notice "that my client is very anxious to adopt a son to her husband Kothandarama Naidu alias Kumarasami Naidu for securing a good son to her late husband performing his ceremonies offering oblations perpetuating the progeny (Line) and to save the soul of my client 's husband from what is known as 'Puth Narakam ' ".
Similar expression of her intention is contained in another letter Ext.
A 4 which was sent by the Advocate on her behalf to one of the Sapindas, Devarajulu Naidu, asking for his consent to the adoptions.
It has also come in evidence that letters similar to the one sent to Devarajulu Naidu were also sent to the other two nearest Sapindas Rangappa Naidu and Umavadan in order to obtain their consent.
In addition, even in Court, plaintiff No. 2 appeared as a witness and stated on oath that "the adoption was to my husband and for perpetuating and to do the ceremonies".
It was argued on behalf of the respondents that, even though these expressions of the reason for adoption by the widow exist in the documents and in oral evidence, the further facts elicited show that her dominant motive was in fact to obtain possession of property and that the consideration of spiritual benefit to her husband did not exist.
It is true that, in cross examination, some facts have been elicited which indicate that considerations relating to material benefit also existed when plaintiff No 2 decided to make the adoption.
She herself admitted that the subject of adoption was broached to her about a year before the adoption by one Ethirajulu Naidu who said that, if she adopted a boy, he would get the property and she could depend on it.
According to her, the same person advised her to take plaintiff No. 1 in adoption.
Even the consenting sapinda Rangappa, who appeared as a witness, admitted in cross examination that the second plaintiff had no one to feed her, and her relatives did not call her; and that was the reason why she made ' the adoption.
These answers elicited in cross examination do not, however, in our opinion, show that the question of spiritual benefit or performance of religious ceremonies was not one of the considerations in making the adoption.
In fact, on the evidence, it appears that Rangappa Naidu, when he gave his consent, had been told why plaintiff No. 2 was going to make the adoption in the written letter sent to him; and it seems that his consent was given in view of that consideration, though, in addition, as he has stated on oath, 507 he also took into account the fact of material benefit to plaintiff No. 2.
This takes us to the crucial point whether, in this case, the consent of the sapindas that was obtained by plaintiff No. 2 before adopting plaintiff No. 1 was a proper consent which would validate the adoption.
Of the three consenting sapindas, Rangappa Naidu was the only one who was examined in court and he clearly stated m his examination in chief that he gave his consent in writing vide letter Ext.
7 A. He added that printed invitations were issued in his name and he and his cousin Devarajulu were present at the adoption.
A deed of adoption was written and executed and he and Devarajulu both attested it.
He also definitely stated that he made no profit at all out of this adoption, nor was he given any promise that he would get any property by giving his consent to the adoption.
To challenge this evidence, learned counsel for the respondents drew our attention to some of the statements made in cross examination.
Rangappa Naidu, when questioned, seems to have admitted that he signed the letter of consent at the place of adoption, even though his consent letter Ext.
A 7 purports to have been sent much earlier than the date of adoption.
It seems to us that, being an old man of 80 years of age, he had some confusion in his mind about making the signatures on various documents.
In his examination in chief, he has clearly stated that he had signed the deed of adoption at the time of adoption and it means that, when cross examined, he became confused and gave his answer under the impression that deed of adoption was also the consent letter signed by him.
In our opinion, the statement made in cross examination that he signed the letter of consent at the place of adoption was really intended to refer to his signatures on the deed of adoption which signatures he must have made after expressing again his consent to the adoption.
That his mind was confused appears from the further circumstance that he stated in cross examination that the name of the boy to be adopted was not mentioned in the invitation issued in his name, though, in fact, the name is actually mentioned.
We are, therefore, unable to accept the submission made on behalf of the respondents that the consent of Rangappa Naidu has not been properly proved in this case.
Apart from the consent of Rangappa Naidu, the plaintiffs also relied on the fact that consent was also given by the only other two equally remote sapindas Devarajulu and Umavadan.
The High Court, in its judgment, appears to have held that the consent of these persons was not proved satisfactorily by the plaintiffs, though the trial Court had taken the contrary view.
It is true that, in this case, Devarajulu and Umavadan were not examined.
The consent letters signed were, however, put on the file.
Deva Sup.
CI/70 2 508 rajulu 's signature on the consent letter was proved by Damodaran Naidu who obtained the letter of consent and who is the natural father of plaintiff No. 1.
Damodaran Naidu clearly proved that this letter was signed in his presence by Devarajulu.
The High Court expressed the view that this consent letter cannot be taken to be proved on the ground that Devarajulu himself was not examined as a witness, and incorrectly ignored the fact that the document was proved by the evidence of Damodaran Naidu.
Reference, in this connection, was also made to the statement of plaintiff No. 2 herself that she had obtained the consent of Devarajulu about a month before she went to the Vakil for advice about adoption and that she did not take the consent from him in writing.
The fact that she did not herself obtain the written consent from Devarajulu does not.
, however, detract from the value to be attached to the written consent which was obtained by her brother Damodaran and not by herself.
No doubt, there are some petty discrepancies between the evidence of these witnesses, but we do not think that they are of such a nature as would justify our disbelieving them.
In our opinion, the consent of Devarajulu to the adoption was also properly established.
In the case of Umavadan, of course, there is a discrepancy that, according to plaintiff No. 2 herself, she obtained his consent when she met him 10 days after the adoption, though the consent letter by him purports to have been signed earlier.
This admission was made by plaintiff No. 2 in her cross examination, and, in view of this admission, we do not think we will be justified in differing from the decision of the High Court that Umavadan 's consent has not been properly established.
In this case, there was also some argument as to his capacity to give consent.
The case seems to have been put forward that he was deaf and dumb and, consequently, incapable of giving evidence, though plaintiff No. 2 herself in her cross examination made a qualification that Umavadan could hear, though he was dumb.
It also appears that he can write and make his signature.
It is possible that he may have given his consent in writing when asked orally or in writing, because he could both hear and read; but, as we have said earlier, in view of the admission of plaintiff No. 2 that she obtained his consent 10 days after the adoption, we must disregard the consent given by him.
Thus, the adoption is supported by the consent given by two out of three equally near sapindas.
The effect of this consent was challenged on two grounds.
One was that t, he consent should have been obtained from all the ' three and not merely two.
In our opinion, the consent of the majority would be sufficient to satisfy the requirement that a widow, in making the adoption should consult the nearest sapin 509 das.
It is not essential that the consent should have been obtained from all the three, particularly when Umavadan was at least partially incapacitated as being dumb.
The second ground, on which the value of the consent by these sapindas was challenged, was that no evidence has been produced to show that, when giving their consent, they had consciously applied their mind to the question whether the widow was making the adoption for the performance of a religious duty or for spiritual benefit to the husband of the adoptive mother and his ancestors.
As we have indicated earlier, out of the two consenting sapindas, only Rangappa Naidu has been examined and, in his evidence, he has not made any such specific statement.
That, in our opinion, is not very material, because, as the principles laid down in various cases show, the very fact that consent is given by a sapinda implies that the adoption is considered desirable and is being resorted to by the widow for spiritual and religious considerations and not out of caprice.
Every sapinda knows that, as soon as an adoption is made, spiritual benefit will accrue to the deceased husband and that the existence of the adopted son will perpetuate his line.
Such consciousness is implied in giving the consent.
It is only when the consent is being refused by a sapinda that it becomes relevant to see whether the refusal was justified on the ground that the adoption was not being made with such objects.
The mere omission of counsel in asking Rangappa Naidu whether he had considered the question of spiritual benefit at the time of giving consent cannot, therefore, imply that the consent was given for other considerations.
A consent would, no doubt, be of no value for validating an adoption if the person giving the consent has his own personal motives.
In the present case, Rangappa Naidu clearly stated that he was not to get any benefit at all out of the adoption of plaintiff No. 1 by plaintiff No. 2.
There is also, however, the further fact that, according to the evidence, letters were sent to both Rangappa Naidu and Devarajulu Naidu in which the reason for adoption was expressed by the counsel for plaintiff No. 2.
As we have noticed earlier, they gave their written consent in response to those letters, and it can be presumed that the consent was given in view of the object indicated in those letters asking for their consent.
There is the further circumstance that, according to the evidence, both Rangappa Naidu and Devarajulu were present at the adoption and signed the adoption deed.
They are both literate.
The adoption deed clearly mentions the purpose of adoption which is the proper purpose for a widow in making the adoption; and it would not be unjustified to infer that both these persons had consented to the adoption again at that time in view of the object men 510 tioned in the deed of adoption.
On facts also, therefore, it appears to be justified to hold that the consent was given by these two sapindas for proper reasons and the fact that they had given their consent would ensure the validity of the adoption.
On the second question, one aspect that has Considerable bearing is the reason which led the law givers in the Hindu law to insist on the right of a widow to adopt a son being contingent either on conferment of authority on her by her husband, or, in the absence of such authority, on the assent of the nearest sapindas.
This question was also considered to some extent by this Court in the case of V.T.S. Chandarasekhara Mudaliar(1) where the Court began by noticing that the basis for the doctrine of consent may be discovered in the well known text of Vasishta: "Let not a woman give or accept a son except with the assent of her Lord." The Court then also quoted two texts of Yagnavalkya in Chapter 1, verse 85 and in Chapter 2, verse 130 which are ordinarily relied upon to sustain the said doctrine: "Let her father protect a maiden; her husband a married woman; sons in old age; if none of these, other gratis (kinsmen).
She is not fit for independence." "He whom his father or mother gives in adoption is Dattaka (a son given).
" After noticing briefly the summary of the evolution of the law by subsequent commentators, the Court proceeded to hold that the said, doctrine is mainly rounded 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 Court then took notice of the decision in The Collector of Madura vs Moots Ramalinga Sathupathy & Connected Cases(2) (popularly known as, and hereinafter referred to as, the 'Ramnad Case ') and referring to it as the leading decision approved of the observations of Sir James William Colvile who made a real contribution to the development of this aspect of Hindu law which were to the following effect: "But they (the opinions of Pandits) show a considerable concurrence of opinion, to the effect that, where the authority of her Husband is wanting, a Widow may (1) [1963,] 2 S.C.R. 440.
(2) 12 M.I.A. 397.
511 adopt a Son with the assent of his kindred in the Dravida Country.
" The Court also indicated that the reason for this rule was clearly stated in that judgment 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 those whose possible and reversionary interest in the estate would be defeated by the adoption.
" In Veera Basavaraju and Others vs Balasurya Prasada Rao & Another(1), their Lordships of the Privy Council reiterated the observations made in the case of Raghanadha vs Brojo Kishoro(2) to the following effect : "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." Thus, the entire case law on the subject clearly indicates that the requirement for consent of a sapinda for adoption by a widow who has not obtained the consent of her husband in his lifetime was laid down, because Hindu law considers a woman incapable of independent judgment and proceeds on the basis that a woman is likely to be easily misled by undesirable advisers.
This aspect, in our opinion, has considerable bearing on the question whether a widow making an adoption must or need not obtain the consent of another senior woman in the family who is herself a widow.
It seems to us that, if a woman is incapable of exercising independent judgment in the matter of deciding whether she should adopt a son to her deceased husband, she can hardly be a competent adviser to another widow on the same matter.
In the present case, for example, if the grand mother Ammakutti were to decide to adopt a son, she would have to obtain consent of Sapin das in the absence of authority from her deceased husband and that requirement would arise because of her incapacity to exercise independent judgment.
If she cannot exercise an independent judgment in the matter of making an adoption herself, it would follow that she would not be able to exercise an independent (1) [1918] L. R. 45 I. A. 265.
(2) [1876] L.R. 3 I.A. 154.
512 judgment to advise plaintiff No. 2, her grandmother widow.
The advice of a person incapable of independent judgment would hardly ensure that the adoption to be made by a widow is proper and justified.
On the principles thus recognised in Hindu law, it would be justified to hold that a Hindu widow, even if she happens to be the nearest sapinda to the widow seeking to make the adoption, would not be a competent adviser and, consequently, there can be no requirement that her consent must be obtained for validating the adoption.
The principles clearly point to the conclusion that the consent must be obtained from the nearest male sapinda.
Learned counsel appearing for the respondents, in support of the decision of the High Court, drew our attention to the decision of their Lordships of the Privy Council in Ramnad Case where it was held : "Upon the whole, then, their Lordships are of opinion that there is enough of positive authority to warrant the proposition that, according to the law prevalent in the Dravada Country, and particularly in that part of it wherein the Ramnad zamindary is situate, a Hindoo Widow, not having her husband 's permission, may, if duly authorised by his kindred, adopt a son to him." He emphasised the fact that, in laying down this principle, the word used was "kindred" without any qualification whether the kindred should be a male or female.
Reliance was also placed on the fact that, in that case, the Privy Council held the adoption made by the widow to be valid, inter alia, on the ground that the consent of a senior female kindred had been obtained.
In that case, the widow had adopted a son with the consent of distant agnate a samanodaka who was the natural male protector of the widow in the absence of nearer male relations, as well as with the consent of the mother in law and other persons who were proved beyond all question to have assented to the adoption.
This second aspect of the decision of the Privy Council in attaching value to the consent of the mother in law for purposes of holding the adoption to be valid was, however, based on the peculiar facts and circumstances of that case.
Their Lordships found that the mother in law was unquestionably the heir to the property next in succession to the widow who was making the adoption, and the mother in law had been specifically.
nominated by the deceased husband to look after his widow.
He had addressed.
a letter to the ColleCtor, of ,the District in which he specifically stated that he had made arrangement that 'his mother, Who was his guardian in every respect, and who had held chief right to the 513 zamindary, was to enjoy the zamindary and all other things; was to pay poishkist to the Cirkar, and was to maintain his royal wife, his daughter, and her younger sister, a small child; when the children grew up and attained proper age, she was to make an arrangement with regard to their right to the zamindary, and continue the same.
In that case, therefore, it is clear that the opinion of the mother in law was considered of some importance by the Privy Council because of this special authority granted to her by the husband of the widow in his own life time.
The case cannot be taken as deciding that, in every case, the consent of a mother in law would be competent to make an adoption valid, or that, in order to make a valid adoption, her consent must be obtained on the ground that she is the nearest kindred alive.
On this aspect of the Ramnad Case, in order to strengthen his argument, learned counsel referred to a decision of the Madras High Court in Rajah Damara Kumara Venkatappa Nayanim Bahadur Varu vs Darnara Renga Rao(1) in which it was held that an adoption by a junior widow without the consent of the senior widow was bad and could not be held to be valid.
It was argued by the counsel in that case that the senior widow was entitled to be consulted as one of the kindred, while, on the other side, it was argued that a widow is not a sapinda but only succeeds as one of the enumerated heirs.
Wallis, C.J., in giving his decision, said : "I do not think it necessary to go into this question, but having regard to the decision of their Lordships in Ramnad Case that the assent of the mother in law Mothuveroyee in that case was operative in support of the adoption, I should be disposed to hold that the senior widow was one of the kinsmen whom it was the duty of the junior widow to consult and that the adoption was bad for failing to consult her.
" We are unable to accept the view expressed by Wallis, C.J., that the principle laid down in Ramnad Case justified an inference that it was necessary to obtain the consent of the nearest sapinda if she happened to be a widow.
It is true that, in the Ramnad Case, the adoption made by the widow was held to be valid, after attaching some weight to the opinion of the mother in law, but that was primarily because she had been given a special position by the writing left by the widow 's husband when addressing his letter to the Collector.
Another.
point to be kept in view when considering this Madras decision is that it is a well recognised principle in Hindu law that, if there are two widows, the senior widow has the preferential right to make an adoption; and it may ' (1) I.L.R. 514 be a good consideration, when judging the validity of an adoption by a junior widow, to see whether she did so after obtaining the consent of the senior widow whose preferential right would thus be defeated.
A similar interpretation of the Ramnad Cose was accepted in another decision of the Madras High Court in Maharaja Kolhapur vs
section Sundaram Ayyar and 15 Others(1) where it was held that the consent of the Queen mother was sufficient in Hindu law to validate the adoption made by the widow Rani, her daughter in law.
In arriving at this decision, Kumaraswami Sastri, J., held : "It is clear from the decision of their Lordships of the Privy Council in The Collector of Modura vs Mootoo Ramalinga Sathupathy (Ramnad Case) that the consent of Avu Bai Saheba, the mother of Sivaii, would validate the adoption in the absence of any other Sapindas." That case, again, had a special feature of its own, viz., that the Court found that there were no sapindas, except Avu Bai Saheba in existence.
It was held that, if there was no male sapinda at all, it would be wrong to hold that the widow would not be capable of making an adoption at all and it was for this reason that it was held that the consent of the female sapinda, viz., the mother in law was sufficient to validate the adoption.
This interpretation of the decision of the Privy Council in the Ramnad Case cannot, however, be accepted as correct in view of the subsequent decisions by the Privy Council itself where the interpretation put was different.
Mr. Ameer Ali, speaking for the Judicial Committee, in the case of Veera Basavaraju(2), said : "The Ramnad Case established the proposition that, in the Dravada Country, under the Dravadian branch of the Mitakshara law there in force, in the absence of authority from her deceased husband a widow may adopt a son with the assent of his male agnates." In that case, thus, the Privy Council held that the reference to kindred or kinsmen, whose consent is to be obtained by a widow for a valid adoption, in Ramnad Case was intended to cover male agnates only.
In an other subsequent case of Ghanta China Ramasubbayya & Another vs Moparthi Chenchuramayya, (1) I.L.R. 48 Mad.
1,204.
(2) [1918] L.R. 45 I.A. 265.
515 Minor, and Others(1), the Privy Council referred to this decision of Mr. Ameer Ali, and, after quoting the extract reproduced by us above, held : "The words 'kindred and kinsmen ', words of general significance, used in the Ramnad case, are here interpreted to mean 'male agnates ' and this interpretation is amply borne out by the facts of that case as already stated.
Similar expressions appearing in the other cases should also be similarly interpreted.
" Thus, the interpretation placed on the decision in the Ramnad Case by Mr. Ameer Ali in Veera Basavaraju 's case(2) was further affirmed by the Privy Council in this latest case of Ghanta China Ramasubbayya(1).
In view of these decisions of the Privy Council, we do not think that we can accept the interpretation put on the decision in Ramnad Case in the judgments of the Madras High Court.
On the other hand, the correct interpretation of that case was further followed by the High Court of Andhra Pradesh in K. Varadamma vs Kanchi Sankara Reddi & Others(a).
It was urged by learned counsel that the two decisions of the Privy Council in the case of Veera Basavaraju(a) and Ghanta China RamasubbaYYa(1) were not concerned with the question whether it is necessary to obtain the consent of the nearest female sapinda or not.
In the former case, the adoption had been made with the assent of the remote sapinda without the consent of the nearest sapinda.
In the latter case, the question was whether the consent of the daughter 's son, who would, under Hindu law, be a preferential heir to the deceased husband, was necessary when consent was obtained from a sapinda who, in the order of succession, would come after the daughter 's son.
It was urged that the Privy Council in neither of these two cases was called upon to pronounce on the question whether, by using the expression "kindred or kinsmen" in Ramnad Case, it was intended to refer to male agnates only, or to all agnates whether male or female.
Even though this is correct, we consider that the subsequent interpretation put on the decision in Ramnad Case in these decisions by the Privy Council is entitled to great weight.
Further, the view expressed in these decisions bears out our opinion which we formed on the basis of the position given to a woman in Hindu law as a person incapable of exercising independent judgment.
Consequently, we must hold that the High Court was wrong in holding the adoption of plaintiff (1) L.R. 74.
I.A. 162.
(2) [1918] L.R. 45 I.A. 265 (3) A.I.R. 1957 A.P. 933.
516 No. 1 by plaintiff No,. 2 in the present case as invalid and the decision of the High Court must be set aside.
As a result, we set aside the decision given by the High Court.
The case will now go back to the High Court for deciding other issues which were in dispute before that Court and which the High Court left undecided because of its view that the suit of the plaintiffs had to be dismissed on the ground that the adoption of plaintiff No. 1 by plaintiff No. 2 was invalid.
The costs of this appeal shall be payable by the respondents to the appellants.

dataset_name: IN-Abs

summary:
A Hindu widow in the Dravida country, who had no authority from her husband to adopt, adopted a son with the consent of two out of three her nearest male sapindas in 1955.
The two sapindas gave their written consent in response to her letters asking for their consent wherein she stated that the object of the adoption was the proper performance of ceremonies for the benefit of her husband and his ancestors.
They also signed the adoption deed which mentioned the purpose of the adoption.
The widow, however, did not obtain the consent of her husband 's grandmother, who was nearer in degree than these two sapindas.
On the question of the validity of the adoption, HELD: (1) The validity of an adoption has to be judged by spiritual rather than temporal considerations.
But, in a case where the widow makes an adoption after obtaining her sapindas ' consent, her motive need not be inquired into because, the very fact that the sapindas had given their consent was a guarantee that the adoption was being made for proper reasons.
[505 G H] (2) It is only when a sapinda refuses consent that it becomes relevant to see whether the refusal was justified on the ground that the adoption was not for proper objects.
Where a sapinda gives consent, the very fact that the consent was given implies that the adoption 'was considered desirable and was being resorted to by the widow for spiritual considerations.
[509 C E] In the present case, the consenting sapindas had no personal motives in giving the consent, spiritual benefit of her husband was in fact one of the considerations for the widow making the adoption, and the sapindas had not merely an implied but express knowledge that the adoption was being resorted to by the widow for spiritual considerations.
Though one of them was not examined as a witness, his consent letter was proved by a witness in whose presence he signed the letter.
[508 A B; 510 A B] (3 ) The consent of the majority of the nearest sapindas would be sufficient to satisfy the requirement that a widow should consult the nearest sapindas.
Therefore, the consent given by two out of three equally near sapindas, was sufficient to support the adoption.
[508 G H] (4) The consent of a sapinda for adoption by a widow, who has no authority from her husband, was required under Hindu law, because, a woman is considered incapable of exercising independent judgment in the matter.
In the present case if the grandmother of the deceased husband were to desire to adopt a son herself would have to obtain the consent of her sapindas in the absence of her husband 's authority, because of her incapacity to exercise independent judgment: and it would follow that she could hardly be a competent adviser to another widow, namely, her grand 500 son 's widow on the same matter.
Therefore, even if she happens to be the nearest sapinda there could be no requirement that her consent must be obtained for validating the adoption.
[511 E F; G H; 512 B] (5) The reference in The Collector of Madura.
vs Mootoo Ramalinga Sethupatty, 12 M.I.A. 397, to 'kindred or kinsmen, whose consent is to be obtained by a widow for a valid adoption, is to male agnates only.
In that case, the opinion of the mother in law regarding the adoption by her daughter in daw was considered important by the Judicial Committee only because of the special authority granted to the mother in law by her son and not because, in every case, the consent of a mother in law was necessary to make an adoption by the daughter in law valid, or that her consent must be obtained on the ground that she is the nearest Kindred alive.
B C; 514 H] V.T.S. Chandrasekhara Mudaliar vs Kulandai Velu Mudaliar ,40, followed.
Raghanadha vs Brojo Kishoro, [1876] LR.
3 I.A. 154, Veera Basavaraju vs Balasurya Prasada Rao, [1918] L.R. 45 I.A. 265 and Ghanta China Ramasubbayya vs Maparthi Chenchuramayya, L.R. 74 I.A. 162, applied.
Varadamma vs Kanchi Santkara Reddi A.I.R. 1957 A.P. 933, approved.
Observations Contra in Rajah Damara Kumara Venkatappa Nayanim Bahadur Varu vs Damara Renga Rao I.L.R. and Maharajah Kolhapur vs
section Sundaram Avyar, I.L.R. 48 Mad. 1, 204, disapproved.