1. There are two proprietory estates called Kapileswarapuram and Kesanakuru in the district of Godavari. Their last male owner was one Buchi Sarvarayudu. He died without male issue, leaving him surviving a widow named Rama Lakshmamma. On the 10th November 1888 she adopted the second defendant, Pattabhiramayya, and this suit was brought to have it declared that his adoption is invalid and inoperative.
2. It is not alleged in the plaint that Buchi Sarvarayudu authorized Rama Lakshmamma to adopt, and it is the case of both parties that the adoption was made under the sanction or with the consent of his sapindas or gnatis. The plaint alleged that their consent was given under corrupt inducement. It is an undisputed fact that the second defendant was the only son of his father, and he was given in adoption by his mother after the death of his father. On this point the plaintiff's case was that a Hindu widow in Southern India is incompetent to give as well as take a son in adoption, without express authority from her husband. It was contended for the defence that no such authority was needed to validate the gift in adoption, and that second defendant's father had also given such authority prior to his death. The adoption was impeached by the plaintiff on three grounds:
(i) the sanction or the consent of sapindas was not given bond fide;
(ii) the adopted was an only son; and
(iii) a widow was incompetent to give away her only son save under express authority from her husband.
3. The plaint admits that plaintiff is one of the sapindas of Sarvarayudu who consented to, or concurred in, the adoption, and the pedigree filed in the case shows that defendants Nos. 3, 5 and 7, whose names were struck out by the Judge, on the ground that they were not necessary parties to the suit are nearer in sapinda relationship than plaintiff.
4. Two preliminary objections were taken to the suit, viz.:
(i) that as a remote reversioner the plaintiff could not maintain the suit, and
(ii) that by his concurrence in the adoption when it was made, he was estopped from impeaching its validity.
5. These form the subject of the first and second issues, and the averments in regard to the invalidity of the adoption form the subject of the third issue.
6. There is a note made by the Judge during the examination of the plaintiff as his own tenth witness that his Vakil gave up his contention in reference to the first issue. It is argued by his Counsel on appeal that there was misapprehension on the part of the Judge, and that what was really abandoned was, not the first issue but the first part of the third issue. What contention the plaintiff's Vakil intended to give up in the Court below is also a subsidiary question which has to be dealt with in appeal.
7. I shall first deal with this question, next with the two preliminary questions, and lastly with the three grounds on which the adoption is assailed by the appellant. As regards the contention which appellant's Vakil gave up in the Court below, there is reason to think that appellant's Counsel is probably right. The Judge's note is in these terms:
"At this point plaintiff's pleader, Mr. Ward, intimates that he will confine plaintiff's case to the question of law that the adoption is invalid by reason of the second defendant being an only son. In reply to this point Mr. Ward gives up the rest of the plaintiff's case."
If Mr. Ward gave up his contention as to the first issue it would be inconsistent on his part to reserve his right to question the validity of the adoption, for in that case, he would have no locus standi at all. On the other hand, the suggestion of appellant's Counsel is reasonable because, as will presently appear, there was not even the shadow of a reason to give up the plaintiff's right to maintain the suit, whilst the evidence as to sapindas having sanctioned the adoption otherwise than bona fide was so contradictory or discrepant as to raise a presumption that Mr. Ward might not have desired to press it on the Court.
8. Passing on to the first issue, there can be no doubt that it must be decided in appellant's favour. The general rule is, no doubt, that a suit of this nature should be brought by the presumptive reversionary heir; but it is a recognized exception to that rule that a more distant reversioner can maintain the suit if he can show that those reversioners who are nearer to the deceased in the line of succession are either in collusion with the widow, or have precluded themselves from interfering, or refused without sufficient cause to institute proceedings, or concurred in the act alleged to be wrongful. The law is enunciated to that effect by the Privy Council in Rani Anund Koer v. The Court of Wards L.R. 8 I.A. 14 S.C. I. L.R. 6 Cal. 764. There is proof in the case before us that defendants Nos. 3 and 5 who are nearer than plaintiff sanctioned or concurred in the adoption and the seventh defendant who is also a reversioner withdrew the suit he had instituted to set aside this adoption. In passing, I may also observe that the Judge is in error in striking out the names of nearer reversioners. They are legitimate parties to the suit and their Lordships of the Privy Council observe to that effect in the case cited above.
9. As regards the second preliminary question the decision must be in plaintiff's favour. No estoppel can arise from ignorance of law which both parties must be presumed to know. The adoption took place in 1888, whilst this suit was brought in 1892. There are not in this case equitable considerations consequent on the growth of a new family or rights of property under an invalid adoption concurred in for a considerable interval of time. It must also be remembered that according to true Hindu theory, adoption is both a religious and a secular act, and estoppel cannot take the place of a religious act on which rests the conventional Hindu belief that a valid adoption generates filial relation and religious competency to make funeral and annual offerings with efficacy.
10. Passing on to the third issue, appellant's Counsel admits that the contention to which the first part of the third issue relates was given up by appellant's pleader and it is unnecessary for me to discuss the evidence regarding it.
11. Another contention with reference to the third issue is that a woman is not competent to give away an only son in adoption without express authority from her husband. The Judge observes that in fact the second defendant's mother who gave him in adoption had her husband's authority. There is the plaintiff's own admission to that effect in Exhibits V and VII and there is also the evidence of the second defendant's maternal uncle. Again, the question whether such authority is necessary to validate the gift in adoption in Southern India arose in Narayanasami v. Kuppusami I.L.R. 11 Mad. 43. It was held in that case that a widow's power to give a son in adoption is co-extensive with that of her husband and that no special authority is needed from him. The Smritis and commentaries which bear on the subject are cited in that decision and it is shown that the conclusion arrived at by the author of Datta Ohandrika is that in the absence of express prohibition from the husband, the widow has the same power to give that he has.
12. This brings under our consideration the substantial question in this suit, viz., whether an only son can be given in adoption.
13. There are several Smritis which forbid such adoption. They are cited in the leading case on the subject, viz., Chinna Gaundan v. Kumara Gaundan 1 M.H.C.R. 51. Several of them state the reason of the prohibition is the desire to prevent the extinction of the natural family or the failure of funeral offerings to the deceased members of that family. The texts are also referred to in Narayanasami v. Kuppusami I.L.R. 11 Mad. 43 where the question arose but was not pressed on the Court. In 1862, the question was first considered by the High Court in Chinna Gaundan v. Kumara Gaundan 1 M.H.C.R. 54. It was decided in that case that if an only son were adopted, the adoption would be valid: the ground of decision being that the Smritis which forbid it were only directory and not imperative, and that though the adoption was a sinful act, it was not invalid if it took place. In that case prior decisions reaching back to the early part of this century are relied on in support of the decision. The opinions of Sir Thomas Strange and Jagannatha are also mentioned. I may refer to the opinion of Viswanath Narayana Mandlik on the subject. It appears further from Narayanasami v. Kuppusami I.L.R. 11 Mad. 43 that the decision in 1862 was followed in Vikrama Devu v. Neelamani Patta Mahadevi Appeal No. 70 of 1882 unreported, but see note at end of this report. In 1886, the appellant's pleader did not press the point that such adoption was invalid in view of the course of decisions in the Presidency. No case is cited in which such adoption was held in Southern India to be illegal. In this state of authorities, I do not think that the question is res integra and I am of opinion that the Judge was right in following the course of decisions in this Presidency for the reasons stated by him. The result is I would dismiss the appeal with costs.
Shephard, J.
14. This is an appeal against the decree of the District Judge dismissing the suit brought by the plaintiff for a, declaration of the invalidity of the adoption of the defendant Pattabhirarmayya by the defendant Ramalakshmamma, who is the childless widow of the last holder of certain estates in which the plaintiff claims a reversionary interest. Although the judgment against the plaintiff is professedly based on the Judge's opinion with regard to the question raised by the third issue, he expresses an opinion adverse to the plaintiff on the first issue, and arguments were addressed to us with regard to that issue as well as the second. The opinion expressed by the Judge is that the plaintiff not being the nearest reversioner cannot maintain the suit without showing collusion on the part of the intermediate reversioners. If it is meant that refusal on the part of those persons to question the adoption is not sufficient to justify the plaintiff in suing, I think that the Judge is wrong, for it is clear that under those circumstances and without proof of fraud a reversioner in the plaintiff's position may maintain a suit to protect his reversionary rights. The plaint makes the necessary allegations and there is evidence to support them. The Judge says that the plaintiff's pleader abandoned this part of the case--but I cannot help thinking he must have misunderstood the pleader. I can understand that the pleader resolved to confine his attack on the adoption to the one objection founded on the fact that the subject of the adoption was his father's only son, and that is recorded in the Judge's note. But as long as lie persisted in that point he cannot reasonably be supposed to have given up all contest on the collateral question raised by the first issue.
15. On the second issue raising the question of estoppel, I think it is sufficient to say that in my opinion no estoppel arises as against the plaintiff by reason of the mere fact that he concurred in an adoption which was supposed by all parties concerned to be legal and valid.
16. The substantial question in the appeal is whether the adoption of an only son is valid according to Hindu Law.
17. As long ago as 1862 this question was held by this Court to be concluded by authority Chinna Gaundan v. Kumara Gaundan 1 M.H.C.R. 54. Since then the question has been raised again three times and received the same answer Sri Ammi Devi v. Sri Vikrama Devu I.L.R. 11 Mad. 486 489 and Narayanasami v. Kuppusami I.L.R. 11 Mad. 43. The authority referred to includes the opinion of Sir Thomas Strange and Oolebrooke and decisions in 1801 and 1817. It is not shown that the current of authority is broken by any single decision in this Presidency to the contrary.
18. It is pointed out to us that some doubt seems to have been entertained by the learned Judges who took part in the decision of 1884.[1] The, circumstance may perhaps be accounted for by the fact that the Chief Justice had previously, when a member of the Allahabad Court, expressed an opinion adverse to that entertained by this Court. See Hanuman Tiwari v. Chirai I.L.R. 2 All. 164 169. The fact remains that the current of authority is for this Presidency unbroken. The present question is by no means the only question of Hindu law on which the High Courts have maintained different views. On questions of this class it appears to me pre-eminently desirable not to disturb well settled rules of law. I would, therefore, decline to treat the question as an open one and would dismiss the appeal with costs. The point taken with regard to the pleader's fee was dealt with at the hearing. I would decline to interfere with the Judge's discretion.
[1] The allusion here is to the unreported case above cited, viz. Vikrama Devu v. Neelamani Patta Mahadevi decided in 1884 by Turner C.J. and Muttusami Ayyar, J. That portion of their judgment in which the present subject was dealt with is given at I.L.R. 11 Mad. 489, in the report of the appeal in the Privy Council against the decree of the High Court.--(Reporter's Note).