Full Judgment Text & Judicial Ruling

P L D 1947 Privy Council 165

P L D 1947 Privy Council 165

Present: Lords Thankerton, Uthwatt and Du Parcq; Sir Madhavan Nair and Sir John Beaumont

GHANTA CHINA RAMASUBBAYYA and another-Appellants

Versus

MOPARTHI CHENCHURAMAYYA, Minor, and others-Respondents

Privy Council Appeal No. 2 of 1944, decided on 16th April 1947, from Madras.

(a) Hindu law-Adoption-Mitakshara law-Widow can adopt with consent of divided agnates-Widow need not consult daughter's sons.

Two questions arise for determination in this appeal : (1) whether, in fact, respondent 1 was adopted as a son to Pitchayya by his widow Pullamma; and (2) if the adoption, in fact, took place, whether according to the Mitakshara School of Hindu law as administered in the Andhra country an adoption made by a Hindu widow with the consent of her husband's nearest agnates is rendered invalid if she has not consulted her daughter's sons before the adoption was made; or in other words, to make the adoption valid is it necessary that the daughter's sons should be con sulted ?

According to the Madras School of Hindu law, a widow may adopt, in the absence of authority from her husband, (1) if she obtains the consent of his sapindas where the husband was separate at the time of his death, and (2) where he was joint, if she obtains the consent of his undivided coparceners.

In their Lordship's view the question under discussion has been correctly decided in that ease. Question 2 must accordingly be decided against the appellants.

For the reasons given above, their Lordships are satisfied that the failure to consult the daughter's sons does not in this case render the adoption invalid.

Seshamma v. Venkata Narasimharao A I R 1940 Mad. 356 approved.

Brahmayya v. Rattayya A I R 1925 Mad. 67 disapproved.

Collector of Madura v. Moottoo Ramalinga Sethupathy ('68) 12 M I A 397 ; Vellanki Venkatakrishna Rao v. Venkata Ramalakshmi ('76) 4 I A 1 ; Krishnayya v. Lakshmipathi ('20) 47 I A 99 ; Veera Basavaraju v. Balasurya Prasada Rao ('18) 45 I A 265; Amarendra Man Singh v. Sanatan Singh ('33) 60 I A 242; Krishnayya Rao v. Venkata Kutnara Mahipathi Surya Rao ('35) 69 M L J 388; Balasubrahtnanya v. Subbayya Tevar ('38) 65 I A 93; Kesar Singh v. Secretary of State ('26) 49 Mad. 652; Viswasundara Row v. Sotnasundara Row ('20) 43 Mad. 876; Murahari Brahmasastri v. Sumitramma ('34) 57 Mad, 411 ref.

(b) Evidence Act (I of 1872), S, 118-Interested witness.

The Karnam, a responsible village official, attended the cere mony. His evidence has not been accepted by the Subordinate Judge because the father of the boy (D. W. 1) who with his wife gave him in adoption happens to be the Village Munsiff of the place. This is not sufficient to show that the witness is incapable of giving disinterested evidence.

(c) Hindu law-Adoption-Means taking of son as sub stitute for failure of male issue-Adoption is always made' to husband and for his benefit-Objects of adoption.

The origin of the custom of adoption is lost in antiquity. Under the Hindu law it is the "taking of a son" as a substitute for the failure of male issue. Its object is twofold: (1) to secure the performance of the funeral rites of the person to whom the adoption is made and (2) to preserve the continuance of his lineage. Adoption is always made to the husband and for his benefit. His power of making it is absolute. He can adopt even without consulting his wife, though after adoption the adopted son becomes son to both. The wife can also adopt as by so doing she could confer spiritual benefit on her husband; but her competency to adopt is limited.

It is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnisation of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father's duty has been performed and the means provided by him for its fulfillment spent; the "debt" he owed is discharged and it is upon the new generation that the duty is now cast and the burden of the debt is now laid. It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a second ary consideration. So Sir James Colvile in delivering the judg ment of the Board in 3 I A 154 observes (at p. 192): "a distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle which Holloway J. has himself strenuously insisted upon elsewhere, viz., that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.

The "substitution of a son of the deceased is the essence of the thing and the consequent devolution of property is a mere acces sory to it."

(d) Hindu law -Wife-Becomes member of her husband's family-Rights of Hindu wife, stated,

The Hindu wife upon her marriage passes into and becomes a member of that family. It is upon that family that as a widow she has her claim for maintenance. It is in that family that in the strict contemplation of law she ought to reside. It is in the mem bers of that family that she must presumably find such councilors and protectors as the law makes requisite for her.

Sri Virada Pratapa Raghunadha Deo v. Sri Brost) Kishoro Pestles Deo 1 Mad. 69 ref.

Hindu law -Mitakshara law-Sapindas-Means agnatic relations.

According to the Mitakshara, "sapindas" would include all blood relations, however distant, as the term means "a person connected by the same pinda or particles of the same body," but this meaning has well-known limitations. Used without any qualification, (as may be seen from these judgments), the term means agnatic relations only, and does not include cognates who belong to a different gotra.

"The pindas received from agnate descendants have greater, efficacy than the pindas received from cognate descendants."

It would be more correct to say that the sons are under a religious obligation to perform them (the sraddhas) and that their failure would entail sin. It is wholly optional with the daughter's son who would incur no sin to his failure to perform the sraddha, but he would earn merit if he did it.

Though there are certain texts which say that a daughter's son should perform sraddhas for the maternal grandfather, their Lordships think that the more weighty view as regards the relative value of his duties in the matter of sraddhas is as stated above.

Hindu law --Mistakshara law-Succession-Daughter's son-Right of inheritance, stated.

The daughter's son occupies a peculiar position in the Hindu law. His preferential right in the matter of inheritance is to be traced to his original position as jutreeka putra, the son of an appointed daughter, i. e., a daughter appointed by the father to raise up issue to him.

Although the practice of appointing a daughter to raise up issue for her father became obsolete, the daughter's son continued even now to occupy the place that was assigned to him, in the order of inheritance and even now he takes a place practically next after the male issue, the widow and the daughter being simply interposed during their respective lives. The difference in his position under the old law and the present law is that under the former he became by a fiction a member of his maternal grand-father's family, while under the present law he is a member of his own father's family, but is also regarded as a son's son to his maternal grandfather for purposes of inheritance."

P. V. Subba Row and R. A. Parikh, for Appellants.

Solicitors : Chapman Walkers.

A. G. P. Pullan, for Respondents.

Solicitors : Douglas Grant & Dold.

JUDGMENT

SIR MADHAVAN NAIR.-This is an appeal from a judgment and decree of the High Court of Judicature at Madras, dated 22nd April 1941, which reversed a judgment and decree of the Court of the Subordinate Judge of Bapatla, dated 31st January 1939. The plaintiffs are the appellants before the Board. The appeal arises out of a suit to set aside an adoption. The following genealogical table shows the relationship of the persons concerned in the appeal :

The parties are governed by the Mitakshara School of Hindu law as administered in the Andhra country, in the Madras Presi dency. Moparthi Venkayya, their common ancestor, had two sons, Perayya and Pitckayya. Pitchayya was divided from Perayya. The respondents are the descendants of Perayya while the appel lants are the descendants of Pitchayya. Pitchayya, who had three wives, died in 1884, leaving surviving him a widow Pullamma and a daughter by his first wife, Punnamma (predeceased) who has two sons-the appellants before the Board. On 22nd March 1937, Pullamma adopted Chenchuramayya (defendant 3, respon dent 1) Her husband had not given her power to adopt. Before the adoption she had obtained consent to the adoption of all her husband's nearest agnates namely, Rangayya (defendant 1, respondent 2), Ramasubbayya (defendant 4, respondent 4), and Perayya, since deceased. On 12th April 1937, Pullamma executed a will which recited that Chenchuramayya was her adopted son and bequeathed to him all her own property (stridhan) and the property which passed to her on her husband's death. No question arises in this appeal with respect to the will which has been found to be valid. On 19th June 1937, Pullamma died.

On 14th July 1937, the appellants instituted the suit out of which this appeal arises claiming the properties as the next reversionary alleging that the adoption of respondent 1 was not true and that, even if true, it was invalid as their consent to the adop tion had not been obtained before it was made. The contesting defendant denied these allegations and stated that the adoption is valid as it was made by Pullamma after obtaining the permission of her husband's nearest agnates.

The Subordinate Judge found that the adoption of respondent 1 was not proved to have been made; that even if true, it was not valid as it was not made bona fide but to spite the appellants and divert the succession from them; and that the assent of the appel lants which was necessary to make it valid had not been obtained. The learned Judges of the High Court held that the adoption was proved. As regards the validity of the adoption, they held it was valid as it was conceded before them that in view of the decision of the Full Bench of the High Court in Seshamma v. Venkata Narasimharao (1), an adoption to which the consent of the agnatic relations alone has been obtained is valid. In that case it was held that :

"In the Madras Presidency, where a Hindu dies leaving a widow, divided agnates, and daughter's sons, without giving his widow power to adopt and the widow makes an adoption, it is valid if she has obtained the consent of the divided agnates: she is not bound to consult daughters' sons as well though they may be of age."

Their Lordships may state that as the findings of the Courts below regarding the alleged assent of the appellants were indefinite and not clear, and the evidence in the case made it doubtful whe ther the appellants were even consulted, the appeal was argued on the assumption that it was held by the High Court that relying on the Full Bench decision to make the adoption valid it was not necessary to consult the daughter's sons (appellants) provided the adoption was otherwise valid.

Two questions arise for determination in this appeal ; (I L R 1940 Mad. 454) whether, in fact, respondent 1 was adopted as a son to Pitchayya by his widow Pullamma; and (2) if the adoption, in fact, took place, whether according to the Mitakshara School of Hindu law as administered in the Andhra country an adoption made by a Hindu widow with the consent of her husband's nearest agnates A is rendered invalid if she has not consulted her daughter's sons before the adoption was made; or in other words, to make the adoption valid is it necessary that the daughter's sons should be consulted? The first question is one of fact; the second is one of law and involves the argument that the Full Bench decision of the Madras High Court above referred to is incorrect. Their Lord-'3hips will deal with the above questions in order.

Question 1. In support of the alleged adoption, evidence of various persons who witnessed the ceremony has been adduced by the respondents. That evidence shows that the boy was "given" in "adoption" by his parents and was "received" by Pullamma. The Piirohit who took part in the function speaks to the ceremonial part of it. D. W. 11 the Karanam, a responsible village official` attended the ceremony. His evidence has not been accepted by the Subordinate Judge because the father of the boy (D. W. 1) who with his wife gave him in adoption happens to be the Village Munsiff of the place. This is not sufficient to show that the witness is incapable of giving disinterested evidence. The strongest piece of evidence in support of the adoption is the photo-graph (Exh. VIII-a) that was taken of the ceremony on 22nd March 1937-the day of the adoption. Pullamma and many of the witnesses of the ceremony are seen in it. The fact that Perayya, one of the agnates who gave consent to the adoption, is not in the photograph does not necessarily detract from its value. Exhibit IX, dated 21st March 1937, the letter written by D. W. 3, the photographer, saying that the sum of Rs 2 sent by defend-ant 1, has been received and that he would be going to defendant 1's village on the next day-the day when the adoption took place-strongly supports the case of the respondents that the photograph was taken on the day of the ceremony, though the letter does not refer to the purpose of the visit or the taking of the photograph.

The evidence given by the appellants is unsubstantial and of no real value. Some of the witnesses say that there was no adoption because if there was a ceremony they would have received invitations and they received none. The inference does not necessarily follow that there was no adoption. No positive evidence that the adoption did not take place has been given on the side of the appellants.

The evidence, taken as a whole, supports the conclusion arrived at by the learned Judges of the High Court. In this connection the corroborative value of the will executed by Pullamma which contains a recital as regards the factum of adop tion cannot be overlooked. This recital reinforces the conclusion which their Lordships have come to on the evidence as regards the adoption. In their Lordships' view the factum of adoption has been satisfactorily established.

Question No. 2.-The second question for decision is whether to render the adoption valid, the appellants (the daughter's sons) should have been consulted. The learned counsel's contention that they should have been consulted is directly opposed, as already stated, to the decision of the Full Bench in Seshamma v. Venkata Narasimharao (sujra) which he submits has been wrongly decided. According to the Madras School of Hindu law, a widow may adopt, in the absence of authority from her husband, (1) if she obtains the consent of his sapindas where the husband was separate at the time of his death, and (2) where he was joint, if she obtains the consent of his undivided coparceners. In the present case--as already stated---Pullamma's husband died separated from his brother Perayya The appellants are bhinna (literally, split or cut asunder)--gotra sapindas or cognates related to the deceased through a female, as distinguished from the go/raja sapindas, who are agnates connected with the deceased through an unbroken line of male descent. The appellants though sapindas are relations of a different gotra (family) and are included under the term bhandus in the Mitakshara.

The learned counsel urges that, (1) the present question did not arise for decision in any of the Privy Council cases which developed What may be called the doctrine of assent by the sapindas; (2) the terms used by the Board in expounding the doctrine such as "kindred", "kinsmen", "sapindas", "family"-all would include the daughter's son also, in their connotation, and that. in choosing the proper person to give advice and consent to the widow the giving of which forms the basis of the doctrine, the tests should be, in a case like the present, (a) who is the person whose interest in the property of the deceased is more affected by the adoption, and (b) who confers more spiritual benefit to the deceased by performing the funeral rites ? Judged by these tests the learned counsel submits it will be found that the appellants, as daughters sons, have a better claim to be consulted than respon dents 2, 4 and the deceased Perayya who are but remote relations. He also relies very strongly on the opinion of Ramesam J., in Brahmayya v. Rattayya (A I R 1925 Mad. 67), which was dissented from by Jackson J. the other learned Judge who took part in the decision.

The origin of the custom of adoption is lost in antiquity. Under the Hindu law it is the "taking of a son" as a substitute for the failure of male issue. Its object is two-fold: (1) to secure the performance of the funeral rites of the person to whom the adoption is made and (2) to preserve the continuance of his lineage. Adoption is always made to the husband and for his benefit. His power of making it is absolute. He can adopt even without con sulting his wife, though after adoption the adopted son becomes son to both. The wife can also adopt as by so doing she could confer spiritual benefit on her husband ; but her competency to adopt is limited. The well known text of Vasishta on which this limitation is based says : "Nor let a woman give or accept a son unless with the assent of her lord." This rule has been accepted as a binding one by all the schools of Hindu law, but it has been differently interpreted in different provinces. In the Andhra country (Madras school) with which alone their Lordships are concerned in this case, the maxim is interpreted to mean that in the absence of authority from her deceased husband a widow may adopt with the consent of her husband's sapindas, their consent supplying the want of authority from the husband. According to the Madras school, "the word corresponding to lord (husband) is merely illustrative and means the guardians of the widow for the time being", so that the assent of the "sapindas" who are presumed as to be the widow's guardians after her husband's death is sufficient to enable her to make an adoption. The need for consent arises because of the presumed incapacity of women for independence: See the text of Yagnavalkya which states in Ch. 1, v. 85 :

"Let her father protect a maiden; her lord, a married woman; sons in old age; if none of these, other gnatis (kinsmen), she is not fit for independence."

It is not suggested that any ancient text of Hindu law exists which has a direct bearing on the precise question which their Lordships have to decide. The answer to it has to be sought for in the reported decision of the Board which have built up the law in the course of more than half a century as to whose consent a widow should obtain to make a valid adoption in the absence of authority from her husband. The present question never arose in any of the cases that came for decision before the Board. In dealing with the various decisions their Lordships will refer only to those which have a direct bearing on the particular arguments addressed to them by the learned counsel. The leading case which, for the first time, laid down the law as regards the nature and sufficiency of consent is Collector of Madura v. Moottoo Ramalinga Sethupathy (12 M 1 A 397). In that case, their Lordships, after stating their conclusion :

"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 Dravida country, a Hindoo widow, not having her husband's permission may, if duly authorized by his kindred, adopt a son to him",

dealt with the question as to who should be consulted amongst her husband's kindred for obtaining the required authority first with reference to an undivided family, and then observed as follows with reference to a divided family :

"Where, however, as in the present case, the widow has taken by inheritance the separate estate of her husband there is greater difficulty in laying down a rule. The power to adopt, when not actually given by the husband, can only be exercised when a foundation for it is laid in the otherwise neglected observance of religious duty, as understood by Hindus. Their Lordships do not think there is any ground for showing that the consent of every kinsman, however remote, is essential. The assent of kins men 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 divided by the adoption. In such a case, therefore, their Lordships think that the consent of the father-in-law to whom the law points as the natural guardian and `venerable protector' of the widow would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every case must depend upon the circumstances of the family. All that can be said is that there should be such evidence of the assent of kinsmen as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor form a corrupt motive."

In the above case, often referred to as the Ramnad case (('68) 12 M I A 397), the widow adopted with the consent of a distant agnate-a samanodaka-who was the natural male protector of the widow in the absence of nearer male relations, the mother-in-law and the other persons who are proved beyond all question to have assented" to the adoption. The Privy Council held that the consent was, in the circumstances, sufficient to legitimate the adoption. As the learned counsel states, the question whether the cognates should be consulted did not arise in the case. The words "kindred" and "kinsmen" and "sapindas" would ordinarily include cognate also; but having regard to the discussion in the judgment it is clear that it was the agnatic relations of the husband alone that were in the contemplation of their Lordships. As they state, consent of the father-in-law, the venerable protector of the widow, would be sufficient If he is dead, it would depend on the circumstances of each case who should be consulted, the general rule being :

"That there should be such evidence of the assent of kinsmen as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive.

Other persons, all agnates, are mentioned in the succeeding cases. As regards the evidence of the consent of kinsmen mentioned in the Ramnad case, their Lordships after quoting the closing sentences from the above extract beginning with : "It is not easy ", further observe, in Vellanki Venkatakrishna Rao v. Venkata Ratnalakshmi (4 I A 1) at p. 14, as follows :

"All which this Committee in the former case intended to lay down was that there should be such proof of assent on the part of the sapindas as would be sufficient to support the inference that the adoption was made by the widow, not from capricious or corrupt motives, or in order to defeat the interest of this or that sapinda, but upon a fair consideration by what may be called a family council, of the expediency of substituting an heir by adoption to the deceased husband."

Observe the development of the doctrine and how the terms kindred, kinsmen, "sapindas", were understood by their Lordships in connection with the doctrine; the Ramnad case refers to the "assent of the kindred", and this case mentions the consideration of the question by the "family council." Whose family can it he, except that of the husband ?-and in his family the appellants have no place. The "sapindas" spoken of as constituting the family council would necessarily exclude a daughter's son (a cognate) as he is not a member of the husband's family. Their Lordships will refer later to the nature of his relationship with his maternal grandfather's family. In relation to the wife, the import ance of the husband's family is thus described by the Board in Sri Virada Pratapa Raghunadha Deo v. Sri Brozo Kishoro Patta Deo (3 I A 154) at p. 191 :

"The Hindu wife upon her marriage passes into and becomes a member of that family. It is upon that family that as a…

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