Sir C. V. Kumaraswami Sastri, Kt., J. — These appeals arise out of a suit filed by the plaintiff claiming to be the next reversioner to one Sambamurthi who died about the year 1907 for a declaration that the adoption by the 1st defendant of one Krishnamurthi, the husband of the 2nd defendant, is not valid. The last male owner of the property was one Sambamurthi, son of one Sanyasi Ayya. He survived his father and died unmarried in 1906 or 1907 leaving his mother the 1st defendant who if he died intestate would succeed to the property as mother and heir under Hindu Law. He, however, left a will which has been filed as Ex. II in the suit, dated the 4th of December 1906. There is some dispute as to the translation of the will, but for the present it is sufficient to say that by the will he consents to his mother making an adoption and to the son so adopted succeeding to the property. The 1st defendant who was the mother of the deceased Sambamurthi adopted Krishnamurthi, the husband of the 2nd defendant. At the date of the death of Sambamurthi the nearest reversioners who were admittedly alive were one Bhyravappa who was a major and the present plaintiff who was a minor. Bhyravappa died towards the end of 1909 about a year or a year and a half after the adoption without filing any suit disputing the adoption. It is alleged by the 2nd defendant and denied by the plaintiff that Bhyravappa gave his consent to the adoption and took part in the ceremonies. Krishnamurthi died in 1919 issueless leaving the 2nd defendant his widow. The case of the plaintiff is that the adoption is invalid, that Krishnamurthi acquired no interest in the properties and consequently the 2nd defendant has no interest, that the 1st defendant as the mother of Sambamurthi is entitled to the properties as heir under Hindu Law with the limited estate of a Hindu mother succeeding to her son, that he the plaintiff is the nearest reversioner and that he is entitled to a declaration that the adoption is invalid and not binding on him. The main contentions of the 2nd defendant who is the contesting defendant are that the adoption of her husband is valid both by reason of the will of Sambamurthi and by reason of the consent and active concurrence in the adoption, by Bhyravappa and that as Bhyravappa died without disputing the adoption, the plaintiff's claim is barred by limitation, his minority making no difference. The Subordinate Judge dismissed the plaintiff's suit on the ground that it was barred by limitation. He, however, held that the adoption was invalid. Appeal No. 208 of 1923 is by the plaintiff against the decree dismissing his suit, and Appeal No. 155 of 1923 is by the 2nd defendant against the finding as to the invalidity of the adoption. As the Subordinate Judge directed each party to bear his or her own costs making the invalidity of the adoption the ground for depriving the 2nd defendant, who succeeded on the question of limitation, of her costs, the appeal is filed by her against the portion of the decree depriving her of her costs and thus raising the question as to the propriety of that finding.
The first question is whether the Subordinate Judge was right in holding that the suit was barred by limitation. There is no dispute that at the date of the adoption there were two reversioners, Bhyravappa and the plaintiff, that Bhyravappa died within two years after the adoption, that the plaintiff was a minor and that if his minority could be taken into consideration, a suit which was filed within three years after his attaining majority would be in time. Although each reversioner has got only a spes successionis and although a nearer reversioner has got no higher rights than the one who is most distant, a right of suit is allowed to reversioners to question any acts which are prejudicial to the reversion. The nature of such a suit filed by a reversioner has now been settled by their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbammal(1) where their Lordships held that where a suit to set aside an adoption is brought by a presumptive reversioner in his representative capacity and on behalf of all the reversioners and if the act complained of is to their common detriment and the right to relief is for their common benefit, the death of one reversioner does not put an end to the suit but entitles another reversioner to be brought on record. They also held that there is no difference between suits to set aside adoption and suits to set aside alienation. This view was followed by their Lordships of the Privy Council in Janaki Ammal v. Narayanasami Aiyar and Maharaja Kesho Prasad Singh v. Sheo Pargash Ojha(2). After the decision in Veakatanarayana Pillai v. Subbammal(3) questions arose as to the period of limitation for suits by reversioners. In Varamma v. Gopaladasayya(4), it was held by a Full Bench of this Court that all the reversioners whether existing or thereafter to be born have a single cause of action to set aside an alienation by a widow prejudicial to their reversion, the cause of action arising on the date of the alienation and that where the existing reversioners allow a suit to be barred, the reversioners thereafter born are equally barred. In Venkatasivayya v. Adenna(5), it was held that a suit brought after the expiry of six years by a reversioner born after the adoption but before a suit became barred under Art. 118 of the Limitation Act would be barred even though the nearest reversioner had precluded himself from filing a suit to set the adoption aside. Wallis, C. J., and Seshagiri Aiyar, J., were of opinion that the birth of a reversioner after the adoption did not give him any fresh cause of action or stop the running of time against the whole body of reversioners.
These cases do not touch the present question as the appellant was in existence at the date of the adoption and the next presumptive reversioner died a year and a half after the adoption before his suit would have become barred. It could not be said that he allowed the suit to become barred by not suing within six years. If the present appellant who was in existence at the date of the adoption had the right to impeach the transaction and if the next reversioner died before the period of limitation expired, there seems to be no principle on which it can be held that a suit by a remoter reversioner who was a minor at the date of the death of the next presumptive reversioner would be barred by limitation if filed within three years of his attaining majority.
It is contended by Mr. Krishnaswami Aiyar for the respondent that each reversioner has not got a right to sue even though there is an injury to the reversion but only the immediate presumptive reversioner, that time begins to run against the whole body of reversioners from the date of the adoption which is impugned and that if the next minor reversioner does not file a suit before the period of limitation so far as the adult reversioner is concerned expires, he cannot claim extension on the ground of his minority. He argues that if a reversioner born subsequently cannot claim the benefit of Sect. 6, one in existence on the date of the adoption cannot do so. As I pointed out before, in the present case the next presumptive reversioner died within 1½ years after the adoption which was long before the period of limitation would expire and the next presumptive reversioner was a minor. The question is whether Sect. 6 of the Limitation Act would give the minor who on the death of Bhyravappa was the next presumptive reversioner a right to sue within three years after he attained majority.
I shall first deal with the contention that no reversioner other than the next presumptive reversioner has got the right to file a suit to set aside the adoption. There is no authority for the proposition that it is only the next presumptive reversioner that has the right to challenge the alienation or adoption by a widow. Each reversioner is equally affected by the adoption and his interests are as much prejudiced as the interests of the next presumptive reversioner as it may be that when the widow dies a person lower in the scale of heirs may be the person entitled to the property. It is difficult to conceive of a representative suit where the persons represented have no cause of action or no injury to redress. In Venkatanarayana Pillai v. Subbammal their Lordships of the Privy Council observed:
“There is nothing to preclude a remote reversioner from joining or asking to be joined in the action brought by the presumptive reversioner or even obtaining the conduct of the suit on proof of laches on the part of the plaintiff or collusion between him and the widow or other female whose acts are impugned. It is the common injury to the reversionary right which entitles the reversioners to sue.”
These observations of their Lordships clearly indicate that a remoter reversioner has a right to impeach the transaction which right he can enforce though under ordinary circumstances the person who is to file a suit to enforce the right is the next presumptive reversioner. The rule of law that the suit should be filed by the next presumptive reversioner unless the remote reversioner can show that the next reversioner disabled himself from filing the suit either by concurrence in the transaction or by collusion with the widow is based on principles of expediency and to prevent multiplicity of suits rather than on a negation of the rights of the remoter reversioner to impeach the transaction. In Rani Anandkunwar v. The Court of Wards their Lordships of the Privy Council observe.
“Their Lordships are of opinion that although a suit of this nature May be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir—that is to say, by the person who would succeed if the widow were to die at that moment. They are also of opinion that such a suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow or have preoluded themselves from interfering. They consider that the rule laid down in Bhikaji Ajaji v. Jayannath Vittral is correct. It cannot be the law that anyone who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships' opinion be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings or if he has precluded himself by his own act or conduct from suing, or has colluded with the widow or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue: see Kooer Goolab Singh v. Rao Kurun Singh.”
I agree with the following observations of Wallis, C.J, in the order of reference in Varamma v. Gopaludasayya. The learned Chief Justice observes:
“It also follows I think that as pointed by the Full Bench, the cause of action of all the reversioners is the same and arises on the date of the alienation, and that the question dealt with in Rani Anandkunwar v. The Court of Wards as to when a remote reversioner is to be allowed to sue is merely a question as to which reversioner should have the conduct of the suit which is instituted on a cause of action common to all.”
It seems to me therefore there is no point in the argument that no reversioner other than the next presumptive reversioner has got the right to sue to set aside the adoption.
If on the death of the next adult presumptive reversioner before the suit is barred, the person next to him is a minor, the question is whether he is entitled to the banefit of Sect. 6 of the Limitation Act. In this connection it is well to consider Sects. 6, 7 and 9 of the Limitation Act. Sect. 6 enacts that where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, or insane or an idiot, he may institute the suit within the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule. By Sect. 8 the period is not extended beyond three years after attaining majority. Sect. 7 relates to the disability of one of several plaintiffs and enacts that in cases where a discharge can be given without the concurrence of the minor, time will run against all the persons jointly entitled to institute the suit; but where no such discharge can be given time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. Sect. 9 states that once time has begun to run, no subsequent disability or inability to sue stops it. It is argued by Mr. Varadachariar, that in the case of reversioners, who do not claim through each other, no reversioner, however near in grade can give a discharge so as to bind the other reversioners and Sect. 7 has no application to the facts of this case, that Sect. 9 would not bar the plaintiff as he was alive at the date of the adoption and there was no subsequent disability after the time commenced to run, that Sect. 6 therefore applies to this case and that the suit is not barred. If this argument is accepted, the plaintiff is clearly in time Mr. Krishnaswami Aiyar for the respondent argues that having regard to the nature of the reversionary rights and to the fact that the injury is, according to their Lordships of the Privy Council, common to the reversion, the plaintiff would not be the person entitled to institute the suit when the adoption was made so as to attract the provisions of Sect. 6 of the Limitation Act. He also argues that on the principle of law that if the next reversioner is barred by limitation the whole body would be barred, and that decrees obtained by or against the next presumptive reversioner with reference to the reversion would bind all the other reversioners, the fact that no suit was filed within 6 years after the adoption bars all the reversioners adults or minors as Bhyravappa was alive and did not sue, that if Bhyravappa had been alive for 6 years the suit would have been barred irrespective of the plaintiff's minority and that his death would not make any difference.
Having regard to the importance of the question and the absence of any authorities bearing directly on the point, I think it necessary that the point should be referred to a Full Bench which will settle the law on the point.
The next question is as to the validity of the adoption of the 2nd defendant's husband. He was adopted by the 1st defendant. It is admitted that 1st defendant's husband did not give any authority to adopt and the ground on which the validity of the adoption is sought to be established is that the adoption was made with the consent of her son, the deceased Sambamurthi and also with the consent of Bhyravappa, the immediate presumptive reversioner. There is no dispute as to the factum of the adoption. As regards the alleged consent of Bhyravappa the Subordinate Judge did not believe the evidence and was of opinion that no such consent was given. There is no documentary evidence as to any consent by Bhyravappa and as pointed out by the Subordinate Judge, Ex. III the deed executed by the natural father of the adopted boy refers only to the consent of the 1st defendant's son Sambamurthi expressed by his will, dated the 4th December 1906. If as a matter of fact the next presumptive reversioner was asked and signified his express consent to the adoption, it is hardly likely that so important a fact would have been omitted in Ex. III executed contempora. neously. There is the evidence of defendant's 15th witness, the wife of Bhyravappa, of defendant's 5th witness, the brother-in-law of Bhyravappa and of defendant's 10th witness, the natural mother of the adopted boy as to Bhyravappa giving express consent and this has been relied upon as strongly supporting the case of the 2nd defendant that Bhyravappa gave his consent. But it appears from the cross-examination that these witnesses are interested in the 2nd defendant and I cannot say that the Subordinate Judge was wrong in not placing reliance on their evidence. There is, however, evidence to show that Bhyravappa knew of and was present at the adoption. Bhyravappa was living next door and there is no suggestion that he was not in the village at the time of the adoption and the probabilities are that he was present at the adoption like other relations. It is also in evidence that the mother of the present plaintiff was present and that she accompanied the adopted son after the adoption to Benares where sradh was performed. The plaintiff was a minor at the time, and there can be no question of his consent or acquiescence by conduct. I think the evidence shows that the adoption was made on the footing of the consent having been already given by the son of the 1st defendant in his will, and that Bhyravappa and the other relations raised no objection to the adoption. Probably they all thought that consent had already been given and they were present at the ceremony. It is clear that if the adoption was made on the footing of the consent by the son, the mere presence of the next presumptive reversioner would not make the adoption valid if the consent of the son on the basis of which the adoption was made is not proved or is invalid. I do not think the adoption can be supported on the footing of Bhyravappa's consent. There can be no doubt that the son did assent to the adoption in Ex. II, his will dated the 4th of December 1906, the genuineness of which is not questioned. There was some dispute as regards the translation of the will and we had it translated by the Chief Interpreter of this Court on the Original Side. The correctness of this translation is not disputed. After referring to the properties, the testator proceeds as follows:—
“As to this, as I am apprehensive that there will be no continuation of the family after my lifetime, as being unmarried, I have no issue, and as I am apprehensive whether my mother may, after my lifetime, suffer trouble at the hands of the gnatis (agnatic sapindas), (I direct that) till our family is continued and the lineage becomes established, my mother shall under this will make an adoption im my stead and, after the adopted boy attains majority, shall hand over to the possession of the said adopted boy all the property, moveable and immoveable belonging to me.”
The words “I direct that” after the word “gnatis” and before “till our family” are put in brackets by the Chief Interpreter. It is clear that so far as the authority to adopt is concerned, it can only be given by the husband, so that the will in law can only amount to a consent by the son who under the Hindu Law would be the nearest sapinda of his mother. A consent need not be by a registered instrument or in any form and when it is by will and the executant who is a sapinda can only consent to the adoption there is no reason why the will should be read as an “authority” to adopt and not merely as a consent to the proposed adoption. It is contended by Mr. Krishnaswami Aiyar that the consent of the son would be sufficient assent of a sapinda to the validity of the adoption, the son being a sapinda of his mother and the law only requiring the assent of a sapinda, that such assent may be given by will and that as the adoption with the assent of the son can only be made after his death, the Hindu Law forbidding any adoption to his father during his lifetime, the death of the son makes no difference. It is contended by Mr. Varadachari for the plaintiff that a son can never consent to an adoption as a sapinda, as the consent of sapindas contemplated in Hindu Law is the consent of sapindas existing at the time of the adoption and that the death of the person giving consent puts an end to the consent.
As regards the widow's power to adopt, the necessity for the widow making the adoption to get the consent either of her husband or of the sapindas is based on the texts of Vasishta “let not a woman give or accept a son unless with the assent of her husband” and on the texts of Manu and other writers that a woman who is to be under the protection of her parents during her youth, of her husband during coverture and of her son after her husband's death or of the elder members of the family in the absence of a son cannot act independently of advice. This text of Vasishta has been construed in Bengal and Benares as prohibiting an adoption after the husband's death. Vigneswara and other commentators however treat the text as limited to an adoption made during the husband's lifetime, and are of opinion that after his death the assent required by Vasishta to be given by the husband during his lifetime is sufficiently replaced by the assent given by sapinda such assent taking the place of the assent of the husband. Now, there can be little doubt that under all the texts the mother after the death of the husband is under the protection of her son who is her nearest sapinda and I can see nothing in the texts which disqualifies a son giving assent to an adoption because ex hypothesi the adoption could only be made after his death. In Collector of Madura v. Mootoo Ramalinga Sethupathy their Lordships of the Privy Council dealing with the assent of sapindas observe:
“It is not easy to lay down an inflexible rule. Every case must depend on the circumstances of the family. All that can be said is, that there should be such an evidence of 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 corrupt motives.”
In Velanki Venkata Krishna Rao v. Venkata Rama Lakshmi their Lordships of the Privy Council again emphasise this view and observe,
“All that is required to be established is that there was such a consent as would be sufficient to support the inference that the adoption was not made from capricious or corrupt motives, but upon a fair consideration of the expediency of substituting an heir by adoption to the deceased husband.”
If the propriety or the necessity of the adoption is to be considered, there can be little doubt that in the present case there was every reason for the 1st defendant's son to assent to the adoption. There is no suggestion that the adoption was made from any corrupt or improper motive. I can find no authority for the proposition that the assent of the son is not the assent of the sapinda and that his assent would be invalid. Sarcar in his valuable work on adoption is of opinion that there is nothing to prevent a son from giving authority to his mother to adopt as the son is the legal guardian of his widowed mother under Hindu Law and he refers to Strange's Hindu Law, Vol. I, page 93 (see Sarcar on Adoption, page 255, 2nd Edition). He is the person most concerned both in getting an heir who will perform his sradh and perpetuate his family, the two purposes which according to Manu and other writers justify or necessitate an adoption. I agree with the remarks of Sarcar in his work on adoption that the son's assent is sufficient. The argument of Mr. Varadachariar is that the assent of the sapinda is not valid to support the adoption if the adoption is actually made after the assenting sapinda is dead, As regards the necessity for the assenting sapinda to be alive at the date of the adoption there seems to be a conflict of authorities in Madras, but the balance of authority is in favour of the view that unless there has been a change of circumstances between the date of the assent and the date of the adoption, the assent of the sapinda, though dead at the time of the adoption, is sufficient to support its validity. In Mami v. Subbarayar it was held by Benson and Abdur Rahim, JJ., that a consent previously obtained from a deceased sapinda cannot be efficacious to validate an adoption if it is not approved of or is objected to by the persons who are the nearer sapindas at the time of the adoption. In this case the consent was contained in a will by which the son authorized his mother to make an adoption, and the adoption was made, but it was found that the dayadis did not expressly consent to it. It was held that the adoption was in. valid. I may point out that the view the learned Judges took is that the adoption would be valid “if it was not disapproved” by the sapindas, and in the present case they did not disapprove of it but attended the ceremony. In Appeals Nos. 294 and 354 of 1921, Krishnan and Ramesam, JJ., were of opinion that no sapinda is entitled to give, by way of a will to take effect after his death, a consent to an adoption by a widow. They seem to place some importance on the fact that the widow never applied for any consent in that case. With respect, it seems to me that the application by the widow for consent has no bearing as it cannot be said that the adoption would be invalid if the reversioners asked the widow to adopt and she does so at their request. The extremeview taken in Mami v. Subbarayar, that the death of the assenting sapinda necessarily puts an end to the efficacy of the consent has not been accepted in the later decisions. In Suryanarayana v. Ramadoss it was held that mere lapse of time without more or the death of the consenting sapinda will not put an end to a consent freely and bona fide granted. In Anne Brahmayya v. Chelasami Rattayya Ramesam and Jackson, JJ., were of opinion that the death of the consenting sapinda would not affect the validity of the adoption if the adoption was made within a reasonable time after the consent. Ramesam, J., at page 517 observes as follows:—
“In my opinion there is an essential difference between the authority of the husband and the assent of a sapinda. The former is intended to be exercise ed only after the death of the husband. The latter is intended to be used at a reasonable time after the consent is given. When the interval is short, the death of the sapinda may not matter, but a sapinda's assent is not to be pocketed by the widow and used long after it was given, when entirely different considerations as to the expediency of the adoption may apply.”
This seems to be in consonance with the view taken in Suyanarayana v. Ramadoss though it is difficult to reconcile it with the view taken by the learned Judge in Appeals Nos. 294 and 354 of 1921. In Ammanna v. Satyanarayana the question was considered by Odgers and Visvanatha Sastri, JJ., and it was held that the consent of the nearest sapinda for an adoption made by a widow can be acted upon after his death if no objection is taken by the sapindas alive at the date of the adoption. I may point out that in Krishnayga v. Lakshmipathi their Lordships of the Privy Council at page 659 in dealing with the contention that, the death of the sapinda puts an end to the power expressly refrain from expressing any opinion upon this and other matters which were argued. Owing to the difference of opinion I have referred to above between the Benches of this Court, I think this question ought to be referred to a Full Bench.
I would refer the following questions for the decision of a Full Bench:—
(1) Whether a suit filed by a reversioner who was a minor at the date of adoption would be in time if filed within three years after his attaining majority where the immediate presumptive reversioner dies before the period of limitation expires and
(2) Whether the assent of a son to an adoption by his mother is sufficient assent under Hindu Law to validate the adoption where there is no change in circumstances and there are no other grounds for the next presumptive reversioner to object to the adoption when actually made.
Reilly, J.—I agree that the two questions should be referred to a Full Bench and I agree also with the view of the facts of this case taken by my learned brother.
[These appeals came on for final hearing on 30th and 31st October, 1928 before a Full Bench constituted as above].
In A. S. No. 155 of 1923:—
Messrs. A. Krishnaswami Aiyar and Y. Suryanaruna for the Appellant.
Mr. T. M. Krishnaswami Aiyar for Mr. A. Venkatachalam and Mr. P. Somasundaram for the Respondents.
OPINION
The second question referred to us for decision is:
“Whether the assent of a son to an adoption by his mother is sufficient assent under Hindu Law to validate the adoption where there is no change in the circumstances and there are no other grounds for the next presumptive reversioner to object to the adoption when actually made.”
In this Presidency the law is well settled that a Hindu widow, not having her husband's permission may, if duly authorized by his kindred, adopt a son to him [See Collector of Madura v. Mootoo Ramalinga Sethupathy.] It is also settled that the condition regarding the consent of the husband's kindred is sufficiently satisfied if the consent of the nearest sapindas—even if there be only one such—be obtained [Subrahmanyam v. Venkamma and Veerabasavzraju v. Balasurya Prasada Rao] they being by virtue of the relationship the most competent advisers of the widow and the proper judges of the propriety of her act in making the adoption. As observed in the referring order, under the Hindu Law the mother is under the protection of the son, who is the nearest sapinda after the husband's death. It follows that prima facie his assent is sufficient to validate an adoption by his mother. According to the theory unde rlying the law of adoption this assent of the son can be acted upon only after his death. Does the fact that the son is not alive when the adoption is actually made render his consent ineffectual and in consequence, the adoption invalid?
It is argued on one side that the son's consent is valid as he is the natural guardian and protector of the widowed mother and is the person most interested in the main purposes which constitute the necessity for the adoption, namely, the performance of his sradh and the perpetuation of his family. On the other side it is contended that the consent contemplated is that of the sapindas whose presumptive or reversionary rights would be defeated by the adoption and not of the deceased son as regards whom no question of endangering proprietary interests could possibly arise. In Collector of Madura v. Moottoo Ramalinga Sethupathy, wherein the validity of a widow's adoption with the consent of her husband's kindred was authoritatively laid down, their Lordships of the Privy Council observed that:
“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 estatewould be defeated by the adoption.”
That the rights of property should also be taken into account was for the first time expressed in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo. At page 83 the Privy Council said:
“It may be the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. 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 woman possessed of, or capable of exercising dominion over, properly. It seems, therefore, to be the duty of the Court to keep the power strictly within the limits which the law has assigned to it.”
In Veerabasavaraju v. Balasurya Prasada Rao, the Board after stating that in the judgment in the Ramnad case some expressions were used which might imply that the question of reversionary interest formed only a secondary consideration in determining what sapindas' assent was primarily requisite observed that rights to property cannot be left out of consideration in the determination of the question. It is noteworthy that in the latter two cases the language of the Board is guarded and their Lordships do not say that proprietary rights form the paramount consideration. The necessary result of every adoption is to divest the sapindas of the interest of the widow's husband which devolved on them; this circumstance by itself should not therefore be regarded as conclusive in determining the validity of the consent on the strength of which the adoption is made. Having regard to these circumstances the observations of the Privy Council adverting to the importance of proprietary rights in relation to the validity of sapindas' consent can only be understood to mean that such consideration should not be lost sight of but should be given due weight in determining what sapindas' consent would be sufficient.
That the ultimate effect of an adoption on the reversionary interest of the sapindas does not form the primary consideration in determining the question may be gathered from the views of the Privy Council regarding the nature of the evidence of consent required in cases of this description. The Ramnad case laid down that:
“there should be such an evidence of consent 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 corrupt motives.”
In Vellanki v. Venkatarama the Board observed.
“Their Lordships think it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow and that all that which this Committee in the former case intended to lay down was that there should be such proof of consent on the part of the sapindas as should be sufficient to support the inference that the adoption was made by the widow not from capricious or corrupt motives in order to defeat the interest of this or that sapinda, but upon a fair consideration of what may be called a family council of the expediency of substituting an heir by adoption to the deceased husband.”
This proposition was referred to with approval in Veerabasavaraju v. Balasurya Prasada Rao. It follows that the decisive consideration in such cases is whether the adoption was a proper and bona fide act; and in coming to a conclusion on that point, the fact that the sapinda giving the consent had no proprietary interest to lose or that it will prejudicially affect the property rights of the nearest reversioners at the time of the adoption will merely be an important element for consideration.
The crucial test being as stated above, the consent of the son who is the nearest sapinda would be sufficient if the circumstances showed that the adoption was made by the widow in the proper and bona fide performance of a religious duty, and the real motive which actuated her was the conferment of spiritual benefit on her husband. The adoption would not be vitiated merely because the son had no proprietary interest to lose by the adoption when actually made or it tended to defeat the reversionary rights of other sapindas. If, however, the evidence bearing on consent leads to the conclusion that the motive which actuated the widow in making the adoption was to defeat the reversionary interest of the sapindas, then the adoption would necessarily be invalid. These being the true considerations, it would follow that the death of the son will not affect the validity of his consent or of the adoption based on it.
No authority has been brought to our notice in support of the contention that the assenting sapinda should be alive at the time of the adoption. The question was raised before the Judicial Committee in Krishnayya v. Lakshmipathi but their Lordships refrained from expressing any opinion on it. In Suryanarayana v. Ramadoss Seshagiri Aiyar, J., with whom Ayling, J., concurred, held that the death of the consenting sapinda will not put an end to a consent freely and bana fide granted. To the same effect is the decision in Anne Brahmayya v, Chelasami Rattayya. In that case, Ramesam, J., observed.
“When the interval is short, the death of the sapinda may not matter; but a sapinda's assent is not to be pocketted and used long after it is given when entirely different consideration as to the expediency of the adoption may apply.”
In Ammanna v. Satyanarayana Odgers and Visvanatha Sastri, JJ., upheld an adoption made by a widow after the death of the assenting sapinda and approved by the sapinda living at the time of the adoption. Visvanatha Sastri, J., however, was prepared to go to the length of holding that such subsequent approval was not essential. Vide his observations at page 649 to the effect that:
“in my opinion the trend of these decisions is that when the consent is given by the father-in law who happens to be the nearest sapinda then living, his death before the adoption is made would not ipso facto revoke the consent; and that such a consent would come to an end only if the circumstances had materially changed after his death.”
If, as we have already pointed out, the determining factor is the object of the widow in making the adoption and the considerations based on the loss of proprietary rights of the reversioners merely serve as aids in appreciating the true nature of the consent and the circumstances relating to the adoption, it is difficult to perceive the necessity for the subsequent consent or approval of the reversioners living at the time when the adoption is actually made. The reservation that the consent should be acted upon with reasonable promptitude and that circumstances should not have undergone a material alteration would seem to meet the ends in view irrespective of the question whether the assenting sapinda was dead at the time of the adoption or whether those living then approved it.
The doctrine of subsequent approval was suggested in the decision in Mami v. Subbarayar. It may at once be stated that it is not an authority for the extreme view that the death of the assenting sapinda necessarily puts an end to the efficacy of the consent. The case merely decided that the adoption on the basis of the consent of a deceased sapinda would be invalid “if not approved of by the persons who are the nearest sapindas at the time of the adoption.” A close examination of that decision shows that the Judges were considerably influenced by the fact that the death of the assenting sapinda would make his consent irrevocable. It is not evident why that circumstance should destroy the efficacy of the consent. Its validity has to be tested solely by the consideration laid down in the judgments of the Privy Council already referred to and if it satisfies them the consent should be allowed to have full operation irrespective of the fact that the assenting sapinda had died. In dealing with the argument that adoption within a reasonable time after the death of the assenting sapinda would be valid the learned Judges observe:—
“No doubt it may not be necessary that the consent should be given actually at the time the adoption is made, but it seems to us that at any rate a consent previously obtained from a deceased sapinda cannot be efficacious to validate an adoption which is not approved by the persons who are the nearest sapindas at the time the adoption is actually made.”
This pronouncement is halting and indecisive. In Suryanarayana v. Ramadoss this case was considered by Seshagiri Aiyar, J., with whose comments we agree [see also Ammanna v. Satyanarayana.]
For the above reasons, the answer to the second question referred to us is in the affirmative.
In view of our answer to the second question, we do not think it is necessary to consider the first question.
T. S. S.