# G. APPASWAMT CHETTIAR AND ANR v. R. SARANGAPANI CHETTIAR & ORS

- **Citation:** [1978] 3 S.C.R. 520
- **Court:** Supreme Court of India
- **Decided:** 1978-03-22
- **Case number:** Civil Appeal No. 2028 of 1968
- **Bench:** R. S. Sarkaria, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-appaswamt-chettiar-and-anr-v-r-sarangapani-chettiar-ors-7358
- **Pages:** 15

## Headnote

Hindu Law--Power of a llirulu wido•v to adupt-Co11_\'{''lf of .~apindosConsultation lVith agnates-111 capacity of wo111en for independent deci.5io11Works & Phrases "Poutra, Pouthratlii Sa11tlwthies" lrhetlier includes an aJovted
SOil.
One G. Chettiar died leaving a daughter (defendant-I) and grand sons of
sister (Appellant).
In 1953 the Ist defendant adopted a son who is the second
defendant.
The appellant, filed the present suit challenging the adoption by the
Ist defendant of the 2nd defendant and .ilienations of properties by Ist and 2nd
defendants, in favour of the 3rJ and 4th defendants. The validity of adoption
\Yas questioned by the appellants on various grounds.
The main ground pressed
in this Court is that there was want of consent of sapindas of the husband of
the Ist <lefendant and that the adoption \vas mrrde for the purpose of depriving
the sapindas of their right to prooerty and not on any consideration of spiritual
benefit to her husband. The trial court found that the refusal of the appellants
to give their consent to adoption was improper and that they had niore or less
abused their fiduciary position.
The High Court found that the adoption was
true but not valid, since other agnates of husband of the Ist defendant were
not consulted and their consent obtained. The court left open the construction
of Will of G. Chettiar and the question as to whether the 2nd defendant was
t:otitlcd to clai.in under the Will of G. Chettiar.
The Court found that the
alienation made in favour of defendants 3 and 4 were valid. On an appeal filed
by
defendant~ 1 and 2 to the High Court, the .High Court held that the
adoption of the 2nd defendant by the 1st defendant was true and valid but
agreed that the contention of the appellants that the 2nd defendant as the adopted
son of the Ist defendant could not take any bequest under the \Vill, but as
Sethu Chettiar the adoptive father of the second defendant took the vested
intere~t under the Will, the defendant 2 will be entitled to that interest as
the adopted son.
The challenge to the alienation in favour of defendants 3 and
4 \V<t'> 11egatiYed.
Dismissing the appeal
1JELD :
1. The power of a Hindn wido\V to ~1dopt a son to his. husband is
\.Vell recognised in Hindu la\V. When the adoption is authorised by the husband
of the widow, the widow's power is co-extensive with that of her husband.
Equally when the consent of the husband's kinsmen is obtained the \Vidov/s
power is co-extensive \Vith that of her husb3nd.
(522 F-Gl
Balusu Gurulingaswa111i v. ·Ba/usu Ru111alakshnuu11n1a, l.L.R. 22 ?\.fad. 398
appro,'ed.
2. The necessity for obtaining the assent of the sapindas has been laid down
in Ramnad ca.."e, ( 1868) 12 l\.1JA 397, 442 referred. The reason for requiring
the assent of the sapindas is to see that the adoption was a bonafide performance
of the religious duty and not due to any capricious action by the widow.
In
the case of a joint fan1ily it is necessary that the widow should consult the
elders in the husband's family particularly the father of the husband. But when
the family is divided the duty of the widow is to consult the agnates of the
husband at the first instance.
If the consent of the nearer agnates is withheld
for capricious reasons she can proceed to consult and obtain the consent of
remoter agnates.
The appellants were consulted by defendant No. 1 but they
refused their consent.
The first appellant who exan1ine:rl himself as P.\V. 1
!'tated that he withheld his consent because he \vas nfrairl that he would lose
his reversionary right to the estate.
Jt is also dear that the appellant was
negntiating a price through several persons for giving his consent.
The rrial
,
...
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Al'l'ASWAMI I'. SARANGAl'ANI (Ka:lasanz, J.)
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Court as \vell as the l-ligh Court rightly ca111c to the conclusion that the appellants improperly \\•ithheld their consent to the adoption.
The contention that
the \Vidow \Vas induced by improper n1otive in adopting negatived \Vith reference
t

## Text

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520
G. APPASWAMT CHETTIAR AND ANR.
v.
R. SARANGAPANI CHETTIAR & ORS.
March 22, 1978
[R. S. SARKARIA AND P. S. KAILASAM, JJ.J
Hindu Law--Power of a llirulu wido•v to adupt-Co11_\'{''lf of .~apindosConsultation lVith agnates-111 capacity of wo111en for independent deci.5io11Works & Phrases "Poutra, Pouthratlii Sa11tlwthies" lrhetlier includes an aJovted
SOil.
One G. Chettiar died leaving a daughter (defendant-I) and grand sons of
sister (Appellant).
In 1953 the Ist defendant adopted a son who is the second
defendant.
The appellant, filed the present suit challenging the adoption by the
Ist defendant of the 2nd defendant and .ilienations of properties by Ist and 2nd
defendants, in favour of the 3rJ and 4th defendants. The validity of adoption
\Yas questioned by the appellants on various grounds.
The main ground pressed
in this Court is that there was want of consent of sapindas of the husband of
the Ist <lefendant and that the adoption \vas mrrde for the purpose of depriving
the sapindas of their right to prooerty and not on any consideration of spiritual
benefit to her husband. The trial court found that the refusal of the appellants
to give their consent to adoption was improper and that they had niore or less
abused their fiduciary position.
The High Court found that the adoption was
true but not valid, since other agnates of husband of the Ist defendant were
not consulted and their consent obtained. The court left open the construction
of Will of G. Chettiar and the question as to whether the 2nd defendant was
t:otitlcd to clai.in under the Will of G. Chettiar.
The Court found that the
alienation made in favour of defendants 3 and 4 were valid. On an appeal filed
by
defendant~ 1 and 2 to the High Court, the .High Court held that the
adoption of the 2nd defendant by the 1st defendant was true and valid but
agreed that the contention of the appellants that the 2nd defendant as the adopted
son of the Ist defendant could not take any bequest under the \Vill, but as
Sethu Chettiar the adoptive father of the second defendant took the vested
intere~t under the Will, the defendant 2 will be entitled to that interest as
the adopted son.
The challenge to the alienation in favour of defendants 3 and
4 \V<t'> 11egatiYed.
Dismissing the appeal
1JELD :
1. The power of a Hindn wido\V to ~1dopt a son to his. husband is
\.Vell recognised in Hindu la\V. When the adoption is authorised by the husband
of the widow, the widow's power is co-extensive with that of her husband.
Equally when the consent of the husband's kinsmen is obtained the \Vidov/s
power is co-extensive \Vith that of her husb3nd.
(522 F-Gl
Balusu Gurulingaswa111i v. ·Ba/usu Ru111alakshnuu11n1a, l.L.R. 22 ?\.fad. 398
appro,'ed.
2. The necessity for obtaining the assent of the sapindas has been laid down
in Ramnad ca.."e, ( 1868) 12 l\.1JA 397, 442 referred. The reason for requiring
the assent of the sapindas is to see that the adoption was a bonafide performance
of the religious duty and not due to any capricious action by the widow.
In
the case of a joint fan1ily it is necessary that the widow should consult the
elders in the husband's family particularly the father of the husband. But when
the family is divided the duty of the widow is to consult the agnates of the
husband at the first instance.
If the consent of the nearer agnates is withheld
for capricious reasons she can proceed to consult and obtain the consent of
remoter agnates.
The appellants were consulted by defendant No. 1 but they
refused their consent.
The first appellant who exan1ine:rl himself as P.\V. 1
!'tated that he withheld his consent because he \vas nfrairl that he would lose
his reversionary right to the estate.
Jt is also dear that the appellant was
negntiating a price through several persons for giving his consent.
The rrial
,
...
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Al'l'ASWAMI I'. SARANGAl'ANI (Ka:lasanz, J.)
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Court as \vell as the l-ligh Court rightly ca111c to the conclusion that the appellants improperly \\•ithheld their consent to the adoption.
The contention that
the \Vidow \Vas induced by improper n1otive in adopting negatived \Vith reference
to the statement of the Ist defendant stating that she had adopted 2nd defendant
for the $Piritual benefit of her husband. The statement by her under the stress
of the cross-examination that she resorted to adoption for putting an end to
the -troubles by the sapindas v,.·hich she had in plenty would only disclose
how bitter she 1vas against the1n.
1523 A-H. J)-F, ( i, 524 E, F, G-J-r, 52.5El
Ka11akaraf11a1n v. Narasi111lia Rao. ILR (1942) 1\.fad. 173 approycd.
Sri Raja Ra1·11 Sri Krishnayya Rao & A11r. \'.Roja nf Pit1r1p11r, (1928) lLR 51
:ti.1ad. 893;
Basha Robida! Singh v. lndar K1111wr,
(1889) IA 16 Cal. 556
(P.C.) referred to.
·rhe basis for requiring the assent of the sapin<las is the presumed incapacity
of women for independence.
During the 100 years society has advanced and
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the presurnption of incapacity of 'ro_n1c11 for independent can no longer be
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taken for granted.
Apart from the Constitutional guarantee that there 'vill be
no discrin1ination against any citizen on the ground of sex,
it is clear
that
women have established
that the presumption of
incapacity for
in<lepen~
dence is no longer valid. It is \Yell known that \vomen have occupied highest
positions and proved themselves equal to men in all
professions
and
other
avocations.
In the changed circun1st<inces therefore the basis for the requirement of the assent of kinsmen by a widow due to incapacity no lo11g:er exists
and it may well be asked \Vhethcr the s:.1pinda 's a<;sent
i~ any more necessary.
[529B;~l
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The contention of the appellants that 'Puthra Pouthrathi Santhathies' does
not include an <idopte<l son negatived. An adopted son is as good as a "Pllthra
for all purposes. It may be Jifferent in case of an illegitimate son. [532 F-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2028 of 1968.
(From the Judgment and Decree dt. 21-9'1960 of the Madras High
Cerni in Appeal Suit No. 80/60).
R. Thiagrojan, K. Jayara111 & K. Ram Kumar for the appellants.
S. Jlajagopalan, Sunanda Bhandare & Malini Poduval for the respondents.
The Judgment of the Court was delivered by
KAILASAM, J.-This appeal is preferred by the plaintiffs against the
judgment of the Division Bench of the High Court of Madras ou certificate.
Appellants are the sister's
grand•ons
of pne Gopalasami
Chettiar.
The first defendant Ramathilakam Ammal is the daughter
of Gopalasami Chettiar and the second defenda'nt the adopted son of
the first defendant is the sister's grandson of her husband Sethu
Cheltiar.
The two defendants are rcspondentlS 1 and 2 in this appeal.
Defendants 3 and 4 are the alic'nees of certain prnperties of Gopalasami
Chettiar from Pcspondents 1 and 2.
The suit was filed by the appellants for (I) a declaration that the
adoption of the second respondent by the first respondent is not true
and valid; (2) declaring that in any cve'nt th~ second respondent as
an adopted son could not take the estate of Gopalasami Chettiar either
nnder the Will of Gopalasami or by succession; (3) a declaration that
alienations made by re&pondents 1 and 2 on 16th December, 1956 in
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
favour of respondents 3 and 4 are not binding on the reversioners of
Gopalasami Chettiar and will not enure beyond the life-time of the
first respondent.
The trial court found that the adoption was true but not valid since
the agnates of her husband namely Pattalam Ramasami Chettiar
another Ramasami Chettiar and Kuppusamy Chettiar were not consul:
B ted ahd their consent obtained.
In view of this finding the trial court
left open the construction of will of Gopalasami Chettiar and the question as to whether second respondent is entitled to claim under the
will of Gopalasami Chettiar or by way of succession on intestacy.
The
court found that the alienation made by respondents 1 and 2 in favour
of respondents 3 and 4 is not valid.
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On appeal by respondents 1 and 2 to the High Court, the Court held
that the adoption of the second respondent by the first respondent was
true and valid but agreed with the contention of the appellants that the
second respondent as the adopted son of the first respondent could not
take any bequest under the will. But as Sethu Chettiar, the adoptive
father of the second respondent, took a vested interest under the will,
the respondent will be entitled to that interest as the adopted son. The
High Court also dismissed the claim of the appellants for any declaration in respect of alienations made by respo'ndents 1 and 2 in favour
of respondents 3 and 4.
In the result the High Court dismiss•od the
suit and hence this appeal before us.
The validity of the adoption was questioned by the appellants on
E various grounds.
First of all it was contended that Sothu Chettiar,
the husband of Ramathilakam Ammal had prohibited her from makil1g
any adoption to him.
The trial court found against this plea of the
appellants and the finding was confirmed by the High Court. The plea
was not put forward before us and therefore need not be considered.
The second ground that was taken was that the adoptio'n was not valid
for want of consent of the sapindas of the husband of Ramathilafam
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Ammal, the first respondent. The third ground of attack was that the
motive for adoption by the widow was improper as the adoption was
made for the purpose of depriving the sapindas of their right to property
and not on any consideration of spiritual benefit to her husband.
The power of a Hindu widow to adopt a son to her husband is
well recognised in Hindu law.
The widow is the surviving half of
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the husband and ihe widow adopts according to the texts in her own
right though the latter view appears to be that she acts as a delegate
or representative of her husband. When the adoption is authorised by
the husband the widow's power is co-extensive with that of her husband.
Equally, when the consent of the husband's kinsmen is obtained the widow's power is co-extensive with that of her husband
(vide Ba/usu Gurulingaswami v. Ba/usu Ramalakshmamma('). The
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power of adoption can be exercised by the widow alone and nobody
can compel her to adopt.
When there is no specific authority by
(;I} J.L.R. 22 Mad. 398.
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APPASWAMI v. SARANGAl'ANI (Kailasam, J.)
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the husbaud her authority is co-terminus with that of her hmband
subject only to the assent of the sapindas. It is not disputed that
the congent of the sapindas is necessary in the absence of th~. lmsA
band's authorisation under the school of Hmdu law to which the
parties belong.
The assent of the sapindas cannot. be eq_uated with
the authority of the husband as the role of the sapmdas 1s only advisory in nature.
The necessity for obtaining the a~sent of the spindas has been laid down in the Ramnad(') case where the court held
that "where the authority of her Husband
is wanting, a widow
may adopt a Son with the assent of his
kindred in the Dravida
Country''. The reason for requiring the assent of the kinsmen
1s
stated by their Lordships as follows :-
'The assent of kinsmen seems to be required by reason
of the presumed incapacity of women for independence,
rather than the necessity of procuring the consent of all
these whose possible and reversionary interest in the estate
would be defeated by the adoption."
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There should be evidence of the assent of the kinsmen as suffices to
show that the adoption by the widow was in the proper and bona fide
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performance of a religious duty and not due to capricious or corrupt
motive.
The reason for the rule
requiring the
consent of
the
sapindas is not due to deprivation of propri":tary interest of the rcversioners but for an assurance that the adoption was a bona fide performance of the religious duty and not due to any capricious action
by the widow.
In the case of a joint family it is
necessary
that
the widow should consult the elders in the husband's family particularly
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the father of the. husband who is her venerable protector, but when
the family is divided the duty of the widow is to consult the agnates
of the husband at the first instance. If the consent by the
nearer
agnates is withheld for improper reasons she can proceed to consult
and obtain the consent of remoter agnates.
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The main ground on which the validity of the adoption was quesF
tioned by the appellants is that the adoption is invalid due to want
of consent of the sapindas of the first respondent's husband.
This
plea found favour with the trial court though the High Court did not
accept it.
The High Court considered the matter elaborately and
found that requisite consent was obtained. As we agree with
the
reasoning and the conclusion arrived at by the High Court it is not
necessary for us to set out all the facts and reasons for our conclusion
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in detail. It is sufficient to state that amongst the relations of the
first respondent's husband the two appellants who are· the brother's
sons of Sethu Chettiar were admittedly consulted but refused
their
consent.
Pattalam Ramaswami Chettiar is: an agnate removed by
three degrees. Ramasami. Chettiar and Kuppusami Chettiar are two
other agnates of Sethu Chettiar. It is. mainly on the ground that
these three agnates were not consulted that the trial court upheld the
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plea of the appellants that the necessary consent from sapindas had
(I) (1868) 12 MJ.A. 397. 442.
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SUPREME COURT REPORTS
(1978] 3 S.C.R.
not been obtained.
Paltalam Ramasami Chettiar had attested the
adoption deed Ex. B-4 executed immediately after the adoption ceremony was over.
The High Court found on evidence that Pattalam
Ramasami Chettiar was present at the adoption and attested the adoption deed and concluded from the circumstances that he ns an
attesting witness had knowledge of the
purport of
the document
which he was called upon to attest and therefore it could be reasonably inferred that be was a consenting party to the transaction. Rcoarding Ramasami Chattiar and Kuppusamy Chettiar the High Court
found after reference to the evidence of one of the appellants and
P.W. 5 examined on their behalf that thQ two agnates wei;,e not proved
to be dhayadis of Sethn Chattiar. The High Court rightly pointed
out that the attack in paragraph I 0-C of the plaint was that the consent of the sap!ndas has not been obtained but the·re was no reference to the failure to obtain consent of the sapindas of the husband
of the first respondent. The High Court has pointed out that Ramasami Chettiar and Kuppusami Chettiar were admittedly 3 to 4 degrees
removed and that Ramasami Chettiar died about JO years ago. There
is no whisper in the plaint about the widow having failed to obtain
consent of Ramasami Chettiar or Kuppusami Chettiar. The High
Court was satisfied that Ramasami Chettiar and Kuppusami Chettiar
arc not proved to be the <lhayadis of Sethu Chcttiar.
The court also
found
that on their own
admission the
appellants· withheld
the consent improperly as they did not
want to lose the right to
property. The widow h.ad consulted Govindasami Chettiar,, Govindarajulu Chettiar, Devarajn Chettiar and ·Ramasami Chcttiar, the father
of the adopted boy, who were all cognates of the first respondent's
husband.
The High Court also found that Devarajulu Chettiar, another sister's son of Sethu Chettiar who was examined as D.W.9 .. had
given his consent.
The trial court has found that the refusal of the
appellants to give their consent is improper and that they had more
or less abused their fiduciary position.
The first appellant who examined himself as P.W. 1 stated that he had withl1eld his consent
because he was afraid that he would lose his rcvcrsionary right to
the estate. It is also clear that the appellant was negotiating a price
through several persons for giving his con•ent.
On ·the facts
the
trial court as well as the High Court rightly came to the conclusion
that the appellants improperly withhefd their consent to the adoption.
On a consideration of the evidence, we
agree with the coricltision
arrived at by the· High Court that the widow had consnlted all the
necessary sapindas and that the withholding of the consent by the
appellants was due to improper motives which would not have the
effect of invalidating the adoption.
It was strongly contended by the learned counsel for the appellants
that the widow was induced by improp·er motive to make the adoption.
It was submitted that the otject of the adoption was to deprive t~~ revcrsioners of their right to proper_ty and not for conferring
any spmtual benefit on her husband Sethu Chettiar.
Ramathilakam
Ammal, the first respondent, in her evidence admitted that as the
'.Jppellants were pestering her with. litigation and demanding money,
m order to put an end to these houbles. she resorted to adopfion.
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APPASWAMI v. SARANGAPANI (Kailasam, J.)
525
She questioned the advocate whether these troubles would be dispelled
if she resorted to adoption and the .advocate stated that. the appellants
would not be able to make any cla1D1 for the property 1f she adopted
and that she should live without anxiety.
In her chief examination
she stated that according to the instructions of the Pnrohit she made
a request to the parents of the boy in the following terms :-
"Give your son in adoption so that my husband and I shall
attain salvation,
so that funeral
obsequies shall be performed, and so that my family shall be propagated.''
This request was made to the hearing of all the people
assembled.
The adoption deed Ex. B-4 recites tliat for the purpose that her husband may derive spiritual benefit and that his soul may rest in peace
and the annual ceremonies and the other vedic rites of herself and
her husband may be performed properly, and that her husband's lineage may be propagated and perpetuated. and tha.t heir be found for
him, she considered it proper to take m adopt10n to her husband
the second respondent.
In re-examination the first respond~nt was
questioned about her statement as to the reasons for her adopt10n and
she stated that it was for the spiritual benefit "paralokasthanam" of
her husband that she had adopted. Reading the evidence as a whole
we are satisfied that the reason for adoption was for spiritual benefit of her husband as seen from her declaration at the time of the
adoption ceremony and the recitals in the adoption deed which was
prepared at the time of the adoption.
The statement by her on the
stress of the cross-examination that she resorted to adoption for putting an end to the troubles by the sapindas which she had in plenty
would only disclose how bitter she was against them.
The evidence
taken as a whole would not justify our coming to the conclusion that
the adoption was due to any improper motive by the widow ·and not
for the spiritual benefit of her husband.
The trial court was of the
view that the appellants were anxious to take money and at the same
time the first resl'ondent was willing to give but the negotiations failed
becaus~ the parties could not agree on the exact figure and having
regard. to the circumstances the. conduct of both the parties is open
to cnhcism. The High Court did not record any clear finding as to
the motive of the widow in making the adoption but observed that
even _conceding that the real .motive of the widow in making
the
adopt10n was to create an heir for her husband after her demise if
that act incidentally created a son for her husband far from such 'act
being considered the consequence of an improper motive for making
the adoption, it would be an altruistic motive with reference to the
adoption.
The learned counsel questioned the
correctness of
the
view tak:n by the High Court and submitted that improper motive
of the widow would vitiate the validity of the adoption.
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.
The law is well-settled that when there is express authority by the
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husba'n~ or when c?nsen~ ~f the sapindas has been properly obtained
the motive of the widow is me!evant. In Kanakll.l'atnam v. Narasimha
16-277SCI/78
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SUPREME COURT REPORTS
[19'78] 3 s.c.R.
Rao,(') it was held that when a widow has received valid authority to
adopt, her motive in making the adoption should be ignored, inasmuch
as the benefit conferred on her deceased husband by the adoption is in
no way affected by her motives.
The Full Bench of the Madras High
Court was considering the case in which the widow had valid authority
to adopt and held tha.t her motive is entirely irrelevant. It proc•eeded
to state "However, spiteful her action may be towards others the
benefit conferred upon her deceased husband by her action is in no .
way affected, and the fact that she cannot act without authodty makes
the position all the more clear."
The decision leads to the inquiry as
to how far the motive is relevant in a case in which the widow has not
got the requisite authority. In Ramnad case (supra) it was held that
the adoption should not be from capricious or from a corrupt motive.
Widow's motive in making the adoption is not really a factor for the
emphasis in Ramnad case was regarding the consent of the nearest
sapindas. If such consent had been obtained the motive is irrelevant
and in the absence of the authority of the husband and without valid
consent of tile sapindas the adoption will be invalid
whatever
her
motive may be.
In the circumstances, the motive of the widow would
not normally be relevant.
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The relevancy of the motive of the widow became important i\1
a case in which the nearest sapinda refused his consent on the ground
that the widow for inlproper motive capriciously wanied to deprive him
of his reversionary right.
The question arose whether withholding of
consent by tll'e sapinda under the circumstances was justified.
In Sri
Raja RaVll Sri Krishnayya Rao and Anr. v. Raja of Pittapur,(') the
widow entered into a contract by which it was ·stipulated that the
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reversioner and the boy to be adopted should settle upon the widow
absolutely one·half of her husband's estate to pay the debts and the
widow should be given a maintenance of Rs. 500 a month out of the
other half which would belong to the son on adoption. The case was
decided by a Full Bench of the Madras High Court. Justice Odgers
and Justice Jackson (Kumaraswami Sastri J. dissenting) held (1) that
on the facts the agreement to execute the settlement and the maintenF
ance de·~ds was a condition precedent to the making of the adoption;
(2) that the motive of the widow in making the adoption was therefore
corrupt; (3) that the plaintiff was entitled to refuse his consent on
the ground that she capriciously wanted to deprive him of his reversionary right; ( 4) that on account of his refusal, which was proper,
there was no consent of the majority of the reversioners, which was
necessary to validate the adoption, and ( 5) that in the Madras PresiG
dency, where a widow not having her husband's authority, can adopt
with the consent of her nearest reversioners entitled to the inheritance,
the Court can scan (a) whether the widow in making the adoption is
actuated by proper or corrupt motives and (b) whether the reversioner's refusal to consent is proper or is based upon purely personal
grounds.
Kumaraswami Sastri J. in his dissenting judgment expressed
the view that on the facts of the case, the adoption was valid and the
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widow's motive in making the adoption was not corrupt.
He expres-
(1) I.L.R. (1942) Mad. 173.
(2) I.L.R. 51 Mad. 893.
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APPASWAMl v. SARANGAPANI (Kailasam, J.)
527
sed the view that the agreement to adopt was long prior to a'nd
was
independent of the agpoement to execute the settlement and the maintenance deeds, and moreover as it is legally open to the widow
to
stipulate with the natural father of the boy to be adopted for her enjoyment of her husband's estate for the full term of her natural life,
her a:greement to convert such a right into an absolute estate cf an
adequate portion is legal, especially if the ho_y to be adopted is, as in
this case, a major.
The learned Judge proce•oded to state that though
the debts were not binding on the reversioners there was nothing illegal in a stipulation that the debts which were morally binding on her
shou:ct be discharged by some means by the son to be adopted. Regarding the validity of an adoption made by a widow for getting a gain
for herself the learned Judge was of the view that where an adoption
is made by a widow both in fulfilment of her religious duties and also
for getting a gain for herself, the adoption is valid but the agreement
for her personal benefit, if not within the limits allowed by law, will
be void.
In other words, according to the learned Judge even if the
motive was for getting a gain for herself the adoption would not be
invalid but the agreement for her personal benefit if not within the
limits allowed by law will be void.
This decision was taken up in
appeal to the Privy Council and their LOrdship of the Privy Council
made certain observations regarding the relevancy of the motive of the
widow in making an adoption and the views expressed by Kumaraswami Sastri J. in his dissenting judgment which arc material for the
present discussion.
It was contended before the Privy Council that
the widow did not make the adoption for the benefit of her husband
or upon religious grounds, but merely in order to get hold of a substantial part of the property.
The Privy Council doubted if where the
consent of the sapindas has been obtained, the motive of the adopting
widow is relevant.
Declining to decide the question as to the relevancy of the motive of the widow their Lordships observed that they
did not cons_ider it necessary to decide this question in the present case
as they were of the view that there is no ground for impnting corrupt
motive to the lady.
They agreed with the view of Kumaraswami
Sastri J. that according to Hindu notions unpaid debts are regarded as
sins. as much in the case of a woman as in that of a man and agreed
with the learned Judge when he stated "I do not think that a widow
who makes an adoption and stipulates that the adopted son should
pay her debts is doing anything corrupt or immoral".
Further referring to the relevancy of the motive of the widow the Privy Council
expressed that it was unnecessary to decide the ques1ion as to whether
Kumaraswami Sastri J. was right in holding that when the adoption
is made in fulfilment of both her religious du1y and also for the
pnroose of getting a gain for herself, the adootion would be vaiid
while any arrangement for her personal benefit, if not within
the
limits actually allowed by law, would he void.
While observing the
view expressed by the majority Odgers J. and Jackson J. that as the
motive of the widow was a mercenary one and that in itsel1 was sufficient to invalidate the adoption and therefore the ground of saoinda's
refu;al was justified, did not take into account the religious asoect of
adootion in the eye of a Hindu widow, left the matfer at that bv
observing that the dictum of Kumaraswami Sastri J. may requir'e
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SUPREME COURT REPORTS
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serious consideration on a future occasion. The learned counsel for
the appellants submitted that the occasion has now arisen for determination of this important question.
The courts are bound to presume that the act is done by a widow
in the proper and bona fide performance of religious duties and neither
capriciously nor from a corrupt motive.
Ordinarily, it is
presumed
that the motive of the widow in making an adoption is for the performance of religious duties. The question as to whether an improper
motive on the part of the widow in making an adoption would invalidate the adoption has been left open by the Privy Council in Sri
Krishnayya Rao v. Surya Rao Bahadur Garu,(') but it is significant
that the Privy Council hesitated to dissent from the view expressed
by Kumaraswami Sastri J. who according to their Lordships was well
qualified to speak on the matter under discussion.
Kumaraswami
Sastri J. in his dissenting judgment in Sri Raja Ravu Sri Krishnayya
Rao and Anr. v. Raja of Pittapur( 2 ) observied that so far as
the adoption is concerned, it is a religious sacrament according to
Hindu law-givers, like a marriage. The necessity for the adoption
of a son in the case of childless Hindus is insisted upon as an act
necessary for their salvation and is looked upon as very meritorious.
The learned Judge pointed out that the Bombay School wherein adoption is looked upon as so meritorious that the authority of the husband is unnecessary and such authority according
to the leading
commentators may be presumed for so meritorious an act.
The learned Judge also referred to the decision of the Privy Council in Blwsba
Rabidat Singh v. Indar Kumar,(') where the adoption was-questioned
on the ground that the widow agreed with the natural father that she
should retain the whole estate during her life time. T'lle Privy Council expressed its view that it did not render the adoption conditional and
did not affect the rights of the adopted son but the condition would
be void withont invalidating the adoption.
The learned Judge pointed
out that secular motives do come into play and influence persons in
making ado~ntion and where an adoption is made by a widow both in
fulfilment of her religious dnty and also for the purpose of getting a
gain for herself, it seemed to him that the proper thing is_ to hold that
the adoption would be valid while any arrangement for her personal
benefit, if not within the limits actually allowed by law, wonld be void.
Taking into account the religious and the sacramental view which..is
involved in the act of adopti0n and the benefits which the Hindus
believe in, namely that an adoption of a son in the case of a childless
Hindu is necessary for his salvation and for performing religious rites,
it will not be proper to hold that improper motive of the widow for
adopting would invalidate the adoption.
To accept such a contention would be to apply modern concepts of law to an ancient sacramental institution of adoption.
We do not feel any hesitation in
accepting the view proponnded by Kumaraswami Sast.ri J. in holding
that the motive of the widow in making an adoption is irrelevant for
(1) [1935] 69 M.L.J. 3RR.
(2\ [1928] I.L.R. 51 Mad. R93.
(3) [1839]1.R.L. 16 Cal. 556(P.C.'
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APPASWAMI v. SARANGAPANI (Kailasam, J.)
529
the purpose of. _validating the adoption.
Consequently, the refusal of
the consent by sapindas on the ground that the motive of the widow
is improper would amount to improperly witbholdirig the consent.
We cannot ignore the development that has taken place in
the
society at large during the space of one hundred years
since the
Ramnad case (supra) was decided and 50 years since Kumaraswami
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Sastri J. gave expression to his views on the matter.
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The basis for requiring the assent of the sapindas is on the ground
of the presumed incapacity of a woman.
According to the text of
Yagnavalkya in Ch. I, Verse 85 and in Ch. II, Verse 130 it is stated
that the father should protect a maiden, husband a married woman and
sons their mother as she is not fit for independence.
In Ramnad
case (supra) this doctrine was recognised and the Privy Council ruled.
"The assent of his Kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity
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Qlf procuring the consent of all these whose possible and reversionary
interest in the estate would be defeated by · the adoption."
There
should be such evidence of the assent of kinsmen as suffices to show,
that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from
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corrupt motive.
Justice Subbarao, as he then was, summed up the
law thus in V. T. S. Chandarashekhara Mudaliar (Died) & Ors v.
Kulandaivelu Mudaliar & Ors,(') "It will be seen that the reason for
the rule is not the possible deprivation of the proprietary interests of
the reversioners but the state of perpetual tutelage of women, and
the consent of kinsmen was considered to be an assurance that it was
a bona fide performance of a religious duty and a sufficient guarantee
against any capricious action by the widow in taking a boy in adoption." The basis for the assent of' the kinsmen by reason of
the
presumed incapacity of women for independence seems to. have disappeared.
During the hundred years society has advanced and the
presumption of incapacity of women for independence can no longer
be taken for granted.
"Apart from the Constitutional p:uarantee that
there will be no <,liscrimination against any citizen on the ground of
sex, it is clear that women have established that the presumption of
incapacity for independence is no longer available. It is well-known
that women have occupied highest positions and have proved themselves equal to men in all professional and other avocations.
In the
changed circumstances therefore the basis for the requirement
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the assent of
kinsmen by a widow due to incapacity G
no longer exists and it may well be asked whether the sapinda's assent
is any more necessary.
Added to this circumstance is the codification of personal law of the Hindus on several branches of Hiiidu law.
The Hindu Marriage Act, 1955 has codified the law on the subject
of marriage and divorce. The Hindu Succession Act, 1956 has codified the law relating to intestate succession.
The Hindu Minority
and Guardianship Act, 1956 has codified the Jaw relating to minoriH
ties and guardianship among Hindus and the Hindu Adoptions and
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SUPREME COURT REPORTS
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Maintenance Act, 1956 has codified the law of adoption and maintenance.
The codified law has made several changes in the law of adoption.
With the passing of the Hindu Succession Act, 1956, sons and
daughters are treated equally in the matter of succession. Equality in
status is recognised in the matter of adoptions also.
The Hindu Adoptions and Maintenance Act, 1956, provides for adoption of boys as
well as girls.
Formerly, a woman could adopt only to her husband
but now she can adopt for herself.
A widow can now adopt a son
or daughter to herself in her own right.
No question of divesting of
any property vested ii, any person arises for under the Succession Act
she is entitled to take th_e property absolutely.
Under the changed
circumstances therefore the questions of the sapinda's consent
or
depriving him of his reversionary interest or the motive of the widow
for adoQ!ion do not arise.
But as in this case the second respondent
was adopted on 10th September, 1953 i.e. three years before the
Hindu Adoptions and Maintenance Act, 1956 came into force, the
law that was applicable before the Act came into force will be applicable to the present case.
Though the Act came into force in 1956
and this adoption was in 1953 before the Act came into force, we
have to take into account the changed circumstances particularly disappearance of the basis of the requirement of sapinda's assent on the
ground of presumed incapacity of the women.
It may also b<} noted that the facts of the present case are different
from the case of Sri Krishnayya Rao v.
Surya Rao Bahadur Garu
(supra) where the widow stipulated that half the estate should be
given over t(j her absolutely and maintenance provided.
In
the
present case there has been no stipulation by the widow for any settlement of property or maintenance on her by the adopted son or his
father.
The _only ground on which the adoption was attacked wa·s
that the motive of the widow was to deprive the sapindas of the
property and not for the spiritual benefit of the husband. We have
already recorded a finding that the motive for adopting the son was
spiritual benefit.
The circumstance that led to the consideration of
the motive of the widow in the case referred to namely a provision
for settlement of half the properties for discharging debts at the time
of the adoption does not arise in this case.
It was next contended on behalf of the appellants that even if the
adoption is held to be valid the adopted son would not be entitled
to succeed to the property of Gopalasami Chettiar as a legatee under
the will.
The plea was that the expression "Puthra Poullfrathi santhathies" would mean only sons born and would not include· an adopted son.
The will provided that on the failure of male issue of
Ramathilakam Ammal, the first respondent, the estate would go to her
female issue and on the failure of such female issue the esfafe wonld
go to Sethu Chettiar and his santhathies.
Construing the terms of
the will, the High Court came to the conclusion that the testator could
not have intended. an adopted son of Ramathilakam Ammal to take
after her as her santhathies.
In this view the High Court upheld
the contention of the appellants that the second respondent would not
be entitled to succeed as the adopted son of Ramathilakam Ammal
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APPASWAMI v. SARANGAPANI (Kailasam, J.)
531
under the will.
But the High Court held in favour of the second
respondent on the ground tha.1 aj Ramathilakam Ammal did not bear
any child and. as such Ramathilakam Ammal's father's estate devolved on her husband and his santhathies after the death of Ramathilakam
Ammal, the property vested in Sethu Chettiar who under the will was
entitled to the vested interest.
In the view that Sethu Chettiar took
a vested interest, the High Court found that the second respondent
who is the adopted son is entitled to the property by devolution.
To consider the question whether the second respondent is entitled
to inherit as the adopted son of Ramathilakam which claim was negatived by the High Court and the question whetl1er the High Court
was right in its conclusion that the second respondent would be entitled to the legacy as the adopted son of Sethu Chettiar, it is necessary
to set out the relevant parts of the will.
Paragrap_h 2 of the will refers
to charities specified in List II.
The charities were to be performed
by the testator's third wife Seshammal and after her by his daughter
Ramathilakam Ammal and after her by her sons and grandsons failing them by her female heirs and if they are not available by Sethu
Chettiar, husband of Ramathilakam Ammal and his Putra Pouthra
santhathies permanently from generation to generation.
Immoveable
properties are described in List III and according to the will after
the lifetime of the third wife Seshammal, the immoveable properties
specified in List Ill as well as cash and moveable properties should be
taken and enjoyed by Ramathilakam Ammal and after her by her
Putra Poulhra Santhathies, and if they are not in esse, by her female
descendants and in case they too are not in esse, .by his sister's son
Sethu Chettiar, the husband of the aforesaid Ramathilakam Ammal
and alter him by his santhathies.