# The Oollector of Madras v. Afootoo Ramalinga Sethupathy

- **Citation:** [1963] 2 S.C.R. 440
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** A.K. Sarkar, K. SuBBA RAo, J.R. - . Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-oollector-of-madras-v-afootoo-ramalinga-sethupathy-2501
- **Pages:** 36

## Headnote

.
Hindu LaW:-Adoption-Nearer Sapindas...:..Refusal of
consent-When improper.
'
The appellants, the nearer sapindas of the husband of
the 2nd respondent who had adopted the !st respondent, the
son of her agent, filed a ·suit for a declaration that the
adoption was invalid on. the ground that they had properly refus~ their consent an~ that _the remote sapii;da who
had given hu consent was dJSquahfied from . so domg as he
, did not believe in the Hindu scriptures. The appellants who
had been asked for their consent had refused it on the ground
that the 1st respondent was not an agnate and that among
their grand children or children there were eligible boys wbom
their parents were willing to give in adoption..
The ttial
court at Madurai as well as tlie High Court of Madras dismissed the suit, holding that the nearer sapindas had improperly refused their consent and that in the circumstances the
adoption with ~he content of the remote sapinda was_ valid.
On appeal by a certificate under Art. 133 (l)(c).
r •
. Held, tbat the power of Hindu widow to adopt is coextensive with that of her husband and when her discretion
is not limited by her husband it is absolute and is only subject
to the assent of the sapindas. Ba/usu Gurulingasu·ami _v. Balusu
Ramala"8hmamma (1899) I.L.R. 22 Mad.398, referred to;
f
The validity of an adoption has to be judged by spiritual
rather than temporal considerations and that devolution of
property is only of secondary importance.
-
The Oollector of Madras v. Afootoo Ramalinga Sethupathy.
( 1868), 12 M.I.A. 397, Sri Raghunadha v. Bhri Brozo Kialwre . .
(1876) K.R. 3. I.A. 154,Raja Vellanki Venkata Krishna Row
v. Venkata Rama Lakshmi Narasrvyya, (1876) L.R. 4, I.A J;
Veera Basavaraju v. Balasurya Prasada Rao, (1918), L.R. 4,
I.A. 265, Amarendra Mansingh v.
Banalan
Singli, (1933)
L.R. 60, I.A. 242 and Ghanta Ohina Ramasubbayya v. Moopar-.
thi OhanChuramawa, (1947) L,R, 74, I.A. 162, referred to, -
··
j
2 s.o.R.
SUPREME OOtJR'l' tmPOR'l'S
441
Held, further, that consent of .sapindas was an assurance
of the b<mafide
performance Of a religious dut) and the
guarantee against capricious action by a widow in taking,
a ·boy in adoption and not the possible deprivation of
proprietory interests of the reversioners.
Sri Kriahnayya Rao v. Surya Rao Bahailur Garu; ( 1935)
69 M.L.J. 388, referred to.
.
The sapindas who are in a fiduciary relation to the
widow should exercise their power objectively and without
being actuated by their own self interest and that the rules
regarding taking only a sapinda In adoption were only
recommendatory and the fact that the widow wishes to
adopt a non°sapinda is no proper ground for Withholding
consent by a sapindas.
Sundara Rama Rao v. Satynaraganamurn I.L.R 1950
Mad. 461, Venkamnia v. Subramaniam, (1906) L.R. 34 I.A.
22, Srimati Uma Devi v. Gohxitanund Das M1ihabata,
(1876}
L.R. 5 I.A. 40, Alluri Venkata Nararimbaraju, v. Alluri
Bangarraju v. C. A. No. 226 of 1944 dated 25-7·46 by the
Madras High Court and Venkatayudu v. Seahamma A.I.R.
1949 Mad. 745, referred to.
ObServations of Bhashyam Ayyangar, J. in Subrahamanyam v. Venkamma -(1903) I.L.R. 25 Mad, 127 held
to be obiter and not approved.
The refusal of consent by the appellants was imP,roper.
Order XVI r. 4 and Or. XVIII r .. 3 (2) of the Supreme
Court do not by themselves enable the High Court to limit
the certificate under Art. 133 Of the Constitution to certain
grounds and upon this grant of such a certificate the whole
appeal was before this Court and all questions urged before
the High Court were open.
The consent given by the remote sapinda on .a proper
appreciation of the relevant facts and despite has non-belief
in rituals, he still being a Hindu, was valid.
OmL APPlllLLATH JUBISDIOTION : Oivil App~
No. 289 of 1959.
Appeal from the judgment and decree dated
December 16, 1955, of the Madras High Court in
Appeal No. 231 of 1954. ·
N. 0. OhafJerjee, K.N • .Baja,gqpala Saski, V .8.
Ven7eat.a Raman and 'l' •. K. 8-IMa- Raman, f

## Text

_Characters 0–39,864 of 69,220. This is a partial read: ask again with offset=39864 for what follows._

, '
4Ao
;SUPREME COuRT REPORTS [1963)
V. T. S. CHANDARASEKHARA 1\IUDALIAR ·
, (DIED) .AND OTHERS.
v.
KULANDAIVELU MUDALIAR AND OTHERS.
(A.K. SARKAR, K. SuBBA RAo and J.R.
-
. MUDHOLKAR, 'JJ.)
.
Hindu LaW:-Adoption-Nearer Sapindas...:..Refusal of
consent-When improper.
'
The appellants, the nearer sapindas of the husband of
the 2nd respondent who had adopted the !st respondent, the
son of her agent, filed a ·suit for a declaration that the
adoption was invalid on. the ground that they had properly refus~ their consent an~ that _the remote sapii;da who
had given hu consent was dJSquahfied from . so domg as he
, did not believe in the Hindu scriptures. The appellants who
had been asked for their consent had refused it on the ground
that the 1st respondent was not an agnate and that among
their grand children or children there were eligible boys wbom
their parents were willing to give in adoption..
The ttial
court at Madurai as well as tlie High Court of Madras dismissed the suit, holding that the nearer sapindas had improperly refused their consent and that in the circumstances the
adoption with ~he content of the remote sapinda was_ valid.
On appeal by a certificate under Art. 133 (l)(c).
r •
. Held, tbat the power of Hindu widow to adopt is coextensive with that of her husband and when her discretion
is not limited by her husband it is absolute and is only subject
to the assent of the sapindas. Ba/usu Gurulingasu·ami _v. Balusu
Ramala"8hmamma (1899) I.L.R. 22 Mad.398, referred to;
f
The validity of an adoption has to be judged by spiritual
rather than temporal considerations and that devolution of
property is only of secondary importance.
-
The Oollector of Madras v. Afootoo Ramalinga Sethupathy.
( 1868), 12 M.I.A. 397, Sri Raghunadha v. Bhri Brozo Kialwre . .
(1876) K.R. 3. I.A. 154,Raja Vellanki Venkata Krishna Row
v. Venkata Rama Lakshmi Narasrvyya, (1876) L.R. 4, I.A J;
Veera Basavaraju v. Balasurya Prasada Rao, (1918), L.R. 4,
I.A. 265, Amarendra Mansingh v.
Banalan
Singli, (1933)
L.R. 60, I.A. 242 and Ghanta Ohina Ramasubbayya v. Moopar-.
thi OhanChuramawa, (1947) L,R, 74, I.A. 162, referred to, -
··
j
2 s.o.R.
SUPREME OOtJR'l' tmPOR'l'S
441
Held, further, that consent of .sapindas was an assurance
of the b<mafide
performance Of a religious dut) and the
guarantee against capricious action by a widow in taking,
a ·boy in adoption and not the possible deprivation of
proprietory interests of the reversioners.
Sri Kriahnayya Rao v. Surya Rao Bahailur Garu; ( 1935)
69 M.L.J. 388, referred to.
.
The sapindas who are in a fiduciary relation to the
widow should exercise their power objectively and without
being actuated by their own self interest and that the rules
regarding taking only a sapinda In adoption were only
recommendatory and the fact that the widow wishes to
adopt a non°sapinda is no proper ground for Withholding
consent by a sapindas.
Sundara Rama Rao v. Satynaraganamurn I.L.R 1950
Mad. 461, Venkamnia v. Subramaniam, (1906) L.R. 34 I.A.
22, Srimati Uma Devi v. Gohxitanund Das M1ihabata,
(1876}
L.R. 5 I.A. 40, Alluri Venkata Nararimbaraju, v. Alluri
Bangarraju v. C. A. No. 226 of 1944 dated 25-7·46 by the
Madras High Court and Venkatayudu v. Seahamma A.I.R.
1949 Mad. 745, referred to.
ObServations of Bhashyam Ayyangar, J. in Subrahamanyam v. Venkamma -(1903) I.L.R. 25 Mad, 127 held
to be obiter and not approved.
The refusal of consent by the appellants was imP,roper.
Order XVI r. 4 and Or. XVIII r .. 3 (2) of the Supreme
Court do not by themselves enable the High Court to limit
the certificate under Art. 133 Of the Constitution to certain
grounds and upon this grant of such a certificate the whole
appeal was before this Court and all questions urged before
the High Court were open.
The consent given by the remote sapinda on .a proper
appreciation of the relevant facts and despite has non-belief
in rituals, he still being a Hindu, was valid.
OmL APPlllLLATH JUBISDIOTION : Oivil App~
No. 289 of 1959.
Appeal from the judgment and decree dated
December 16, 1955, of the Madras High Court in
Appeal No. 231 of 1954. ·
N. 0. OhafJerjee, K.N • .Baja,gqpala Saski, V .8.
Ven7eat.a Raman and 'l' •. K. 8-IMa- Raman, for the
Appellants Nos. 2 to 6 .
.A. ·V. V~
8aatri, B. <laoo,patlifl l1J6"
1961
Y. T.S.
Chonda ....... Aara
Modoliar
•
v.
Kulandiff</1
MvdGllar
JHI
Y. T.S.
Chn•..al>aro
Jledaliar
•.
KuHlldaM..i.lia
Subb1B .. J.
442
SUPREME COURT REPORTS [1963]
8. Gopa!aralnam and G. Gopal.akrishnan, for
reepondent No. I:
T. S. Venkataraman, for respond<.>nt No.:!
I 962. April 26. The Judgment of the Court
W88 delivered by
SUJIBA RAo, J.-This appeal on a certificate
ill preferred against the judgment and decree of the
High Court of Judicature at Madras "onfirming
thOfle of the Subordinate Judge, Madurai, in e. suit
for e. decle.re.tion the.t the e.doption of the 2nd
defend•mt by the lst defende.nt we.s invalid.
The
following genealogy will be helpful to e.pprecie.tc the
fe.cts e.nd the contentions of the parties :
Ren,atha
----------·
I
Vhane.ppa
I
I
Kulandaivclu (l:ir.)
I
Dhe.nappa
---------
I
Renge.natha
Su bra.mania. I
I
Kulandaivelu (Jr.)
Chandarasekhara (Pl.)
,,
I
Sbanmugha
I widow Guruvammal
Ke.nniappa (P2)
Anni (DI)
I
(died Feb. I952
P 3 to P 5
adopted D 2)
I
I
Renga.natha Dhanappa (D I I) Sankare.linga (D 19)
I
I
I
Balaguruewami(D4)
Pe.laniandava
I
I
I
I co 20)
D 5 to D IO Shanmughasundara /
D 21 and D 22
(D 12)
·
Ave.daia.ppa (D I4)
D lG t.olD 18
·•
~· .
)
-
•
2 8.0.R.
SUPREME OOURT REPORTS
443
Shanmugha., Subramania. and Kula.nda.ivelu {Jr.)
became divided in 1878 and since the division ea.ch
of the three branches of the family was living
separately. Kulandaivelu {Jr.) died in the year
1912 possessed of considerable property described
in the plaint schedule leaving him surviving his
widow, Gnruvammal Anni, who is the lst defendant
as his sole heir. In 1951, Guruva.mmal Anni, with
a view to adopt the 2nd defendant to her deceased
husband, wrote letters to her husband's sapinda.s
who were majors i.e., plantiffs 1 and 2, and defen·
da.nts 5, 11, 12, 14, 19 and 20, seeking their consent to her adopting the 2nd defendant. The said
sa.pindas, except defendants 12 and 14, refused to
give their consent for the reasons mentioned in
their replies.
Defendant 12 did not receive the
letter, but the 14th defendant gal'e his consent
to the adoption. On Ma.y 25, 1951, Guruva.mmal
Anni adopted Knla.ndaivelu (Jr.), the 2nd defendant
as a. son to her late husband. On May 30, 1951,
she executed Ex. A-1, the adoption deed, and
registered the same on June 12, 1951. Chandarasekhara., the son of Su bra.mania., and his son,
Kanniappa, and three minor grandsons filed 0. S,
No. 156 of 1951 in the Court of the Subordinate
Judge, Madurai,
for a declaration
that
the
adoption of the 2nd defendant
by
the 1st
defendant
was . invalid,
void
and
of no
effect. Defendant 3, is the natural father of
defendant 2; defendants 4 to 21 are the other
upirida.s of 1st defendant's husband, being the
descendants of Rengan~tha.. The particulars of
their relationship to Kulanda.ivelu will be seen
from the a.f~resa.id genealogy. It was, inter alia,
alleged in the plaint that the adoption made by the
let defendant of the 2nd defendant without the
consent of the sapinda.s was bad and that the con·
sent given by the 14th defendant was purchased
and therefore would not validate it. Defendants
I, 2 and 3 filed written-statement.a supporting the
adoption; the7 pleaded that, u the nearer aapindN
IHI
Y.T.S.
Chan"'1•1ikhara
Mu.li1r
..
Kulfl#UUil!llu
JllU./jmo
--
Suiha Ra, J.
lln
Y.T.S.
~Aora
Mudalw
v.
XlllacietvJia
M...WW
S""6aRaJ.
444
SUPREME OOURT REPORTS [1963]
improperly refused to give the consent, the !'<loption made on the basis of the consent given by the
14th defendant was v.11olid.
The learned Subordinate Judge, on a consideration of the evidence and
the relevant law on the subject, came to the conclusion that the 12th defendant, though reoei~ed the
notice seeking his ooneent, returned the same, that
the other sapindas, excluding defendant 14, im properly refused to give their consent to the adoption
and that, therefore, the adoption made with the
consent of defendant 14 wss valid in law. The
Subordinate Judge also rejected the contention of
the plantiff's that the 14th defendant, having regard
to his disbelief in the religious efl'icacy of adoption
and the Hindu rituals, was disqualified from giving
his consent. Io the result, he dismissed the suit.
On appeal a division Bench of the Madras High
Court,
agreeing with the view of the learned
Subordinate Judge, oame to the conclusion that the
sapindas were actuated by improper motives in
refusing to give their coneent. The eeooad contention directed against the consent given by defendant
14 does not appear to have been seriously preseed before the High Court. In the result the High Court
dismissed the appeal with oosts. It may be men.
tioned that the lat defendant, Guruvammal Anni,
died pending the suit and that the let plaintiff died
after the appeal was disposed of by the High Court.
The other plaintiffs have preferred to present appeal
against the judgment of the High Court.
The main question raieed in this appeal ia
whether the refuaal of the sapindas, other than
defendant 14, to give coneent to the &dopti.on of
the 2nd defendant by the let defendant was improper and, therefore, could be disregarded.
Before we coDBider the legal aspects of the
question raised, we shall briefly state the rnlevant.
facte, either adinittc d or coLcori ently found l>
'
. ,
•
t I
It
. ' .
--\.
'
2 S.C.R.
SUPREJ\IE COURT REPORTS - ·445
1111
the courts, below. Kulandaivelu, the last male•
holder, died on January 29, )912, possessed of extensive property. His widow, Guruvammal Anni,
was managing the said property through power of
attorney agents. ·rhe-1st ·defendant is the 3rd
Y. T.S.
c..+iindu11•1kha11'
Mud1Jli•"
· defendant's father's mother's sister's daughter's.
The 3rd defendant was also helping the 1st defendant - in respect of certain transactions during the
management of her properties by one of her power
of attorney agents. _ The 3rd defendant and his
wife were living with the 1st defendant; and the
second defendant was born in 1930 in the house
of
Guruvammal Anni. She was very much
attached to him &nd- as he grew up she also performed pujas in company with him. The 2nd defendant studied_ in the District Board High t5chool, _
Sholavandan taking Sanskrit as his second language
.. and was studying for B. A. (Hons.) degree in 1951
when he was adopted. In 1951 Guruvammal Anni
was about 67 years old and.wanted to take a boy in
adoption who would not only discharge religious
duties to her husband as his son and preserve the
continuance of her husband's lineage, but would .
_ also be of great solace and help to her during the
- remaining years of her life.
~ith that object, she
issued notices to the sapindas of her husband intimate
in" them of her intention to adopt the 2nd. defen-
.. da°nt, who, according· to her, had all the necessary ·
qualifications to fulfil tho role of an adopted son.
The boy proposed to be adopted by her wa_s young
healthy, educated, religions minded and devoted to
her, having been born in her house and brought up
by her.
·
In April 1951, the 1st defendant sent· letters
Ex.A-I to - the 1st
plaintiff, ·Ex.A.JO to the
· 2nd ' plaintiff,
Ex.A·15 - to the 4th defemlant
and a similar one to the 5th defendant, Ex.A-18
to the 11th defendant, Ex. B-3 to ·the 12th
·defendant, Ex. B-62 to the 14th defendant, Ex.A.21
to the 19th defendant, and Ex.A·25 to the ~0th
r ·
.
.
•
,
,
'
,
;
i'
.
: "·
K'ulandaifllu
Mulf•liar
Subba Rao o! ~
lDG2
Y. T.s.
c~··
Mudal/OF
••
CWttadaiwlu
Jlu4oliOF
Satbo Ra.J.
446 SUPREME OOURT REPORTS (1963}
defendant, seeking for their consent to her adopting the 2nd defendant.
As already stated, all the
said persons
excepting defendants 12 and 14,
replied refusing to give their consent to the propoe·
ed adoption; the 12th defendant received the letter
but returned it unopened, and the 14th d<ifendant
gave his consent.
Ex. A·3 is the reply sent by the lat plaintiff.
He has given various reasons for refusing to give
his consent to the proposed adoption. As much of
the argument turned upon the contents of this
letter, we would briefly give the i::aid reasons.
They are: (I) the Ist defendant did not think fit
to take a boy in adoption for many years though
her husband died 38 years ago and that four yea111
ago there was some talk about it, but, at the
instance of the let plaintiff and other agnates, she
gave up the idea of making an adoption stating
that she would not think of adopting a boy to her
husband; (2) the present attempt to take a boy in
adoption was at the instance of the 3rd defenqant,
who was exetcising considerable influence over her:
(3) .to take a boy in adoption aged about 20 years
and who was not an agnate was oppoaed to the
uniform and invariable custom prevailing in the
oommunity; and ( 4i there were eligible boys among
hie grandsons under the age of 7 years and among
his cousin's great.grandsons under tht> age of 18
years and the parents of thti said boys bad no
objection to give any one of them in adoption. He
summarized his objections in the following words:
"I do strongly object to the adoption of
Kulandaivelu,your agent's son; not only for
the reason that he is aged and ineligible, but
also for the reasons that he is not agnate and
the proposed adoption is prompted by corrupt
and selfish design on the part of your agent.
The proJ:,f,sed adoption has behind it the moUve of · eatinf the le gltimate reve11irn117
•
.
.
t-
•
2 S.C.R.
SUPREME COURT REPORTS 447
interest of your husband's agnatee and is
absolutely wanting in good faith.''
Ex. A"l2 is the reply of the 2nd plaintiff, i.e., the
eon of the let-plaintiff. He has· practically repeat,.
ed the objections found in his father's letter; while
the father stated in his letter that there were
eligible boJll for adoption among his grandsons and
great-grandsons of his cousin, the 2nd plaintiff only
referred to his sons; he says in his letter: "Moreover, if you really desire to take a boy in adoption
I have got eons who are less than seven years old
and who are fit for being taken in adoption. I
have no objection whatever to give in adoption
anyone of the aforesaid boys whom you like."
Ex.A·l.6 in the reply given by the 4th defendant.
He has eligible boys, who are the great-grandsons
of the cousin of the 1st plaintiff and who can be
given in adoption; these are some of the
boys
mentioned
by
the · 1st
plaintiff
in
his
letter. He sets up the case that the 1st defendant's
husband had adopted one Sankarlinga.
Mudaliar
even when he was alive. He refuses to give the
consent on the ground that there was already an
adoption. Ex. B-5 is the reply given by the 5th
defendant and he only adopts the reasons given by
his father, the 4th defendant. Ex·A-19 is the reply
given by the II th defendant, who is the father of
the 14th defendant. His reply is on the same lines
as given by the let plaintiff. Ex:.B-4 is the reply
given by the 14th defendant; he gives his wholehearted consent to the adoption. He has four eligible
sons, defendants 15 to 18, who oould be given in
adoption. Ex.A-22 is the rf;lply of the 19th defendant and Ex.A-26 that of his son, the 20th defendant. The 19th defendant stated that he has grandsons aged less than 8 yea.rs and that the parents of
the said boys have no objection to give any one of
~hepi in adoption. The 20th defendant offers one
1962
·Y. T.S.
CAndaraukhara
Mudaliar
••
KuUmdeiD1lu
.Mudalior
SUbbaR .. J.
Y. T.S.
CAnilliaroaikAora
Mudaticr
•.
K oJ..,/. W.lu
Nudolirir
S~B .. J,
448
SUPREME OOURT REPORTS [1983]
of his sons to be taken in adoption by the 1st defendant.
The position that emerges from the aforesaid
replies is this: (I) the !st plaintiff suggested that-any
onP. of his grandsons or his cousin's great-grandsons
might be taken in adoption; (2) the 2nd plaintiff,
the 19th defendant, the 16th defendant and the 20th
defendant offered their sons or grandsons, as the
case may be, for adoption; (:l) the 14.th defendant,
the son of the 11th defenrlant gave his consent to
the adoption; (4) to 12th dcfondant, who has only
one son, though he receivf)d the notice did not
reply; and (5) the 4th a.nd the 5th defendants Silt up
another adoption by the last male-holder. In shm·t,
tho elderly m1,mb<'rs of the branch of Danappa,
except rlcfendant.s, 4, 5, 12 and 14, objected to the
adoption mainly on the ground that the proposed
hoy was not a Hapinda and that they were willing
to give one of their sons or grandRons. as the case
may ho, in adoption. Tho other grounds given bv
them arc similar to those given by tho 1st plaintiff.
The sn.icl grounds indicato that t.hey were anxious
that the widow should not take the boy in adoption
but should leave the properties to th() reversi,1nere.
The other reasons given, na.mely, the alleged influence of the 3rd defondant over the widow, the custom againRt adoption of a person other tha.n a.n
agnate and the ineligibility of tho boy, were a.II
found by both the courts below to be untenable. The
repliP,l! disclose a. concerted action on the pa.rt of
the sapind&e to prevent the widow from ta.king the
2nd defendant in adoption. They ha.d nothing to
say against the qua.lifiea.tions of the boy, for, as we
have already noticed, be was in every wa.y the
most suitable boy from the standpoint of the widow.
The only objection, thereforr, was that the boy was
not an agna.te a.nd that there were eligible boys
among the a.gnates. Thti question. therefore, in this
Ca.6e is whet her the refusal to give oonee~t to t1'e
,
•
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..
'
r
2 S.C.R.
SUPREME COURT REPORTS
449
adoption by the widow of a boy, highly qualified in
every way, on the simple ground that be waH not an
agnate and the other agnates were avaifable for
adoption would be an improper refusal by the sapindas so as to entitle tho widow to ignore their refusal and take the boy in adoption with the consent
of the remoter sapinda.
Mr. N.C. Chatterjee, learned counsel fore th
appellants, contends that the refmml uf the sapindas
to give consent, in the circumstances nf the present
case, was proper for two reasom .. namely, (I )according to Hindu shastms a wi<low lms t'l t.ako only a
sapinda. in adoption in preferei:ce to one outside
that class, and (2) the let plaintiff did not refuse
but gave consent on condition that orw or other of
his grandsons or
great-grandsons of his couein
should be taken in adoption and the Bl\id oondition
is sanctioned by Hindu law.
Mr. Vishwanatha Sastri, learner] counsel for
the respondents, on the other hand, contends that
the refusal by the agnates to give consent for the
adoption was improper, for, they, bf>ing the guar·
dians and protectors of the widow, were in a fidu.
ciary relationship with the widow and that they
should have exercised their discretion objectively
a.nd reasonably from the standpoint of the ad vis.
ability of taking the 2nd defendant in adoption in
the last male-holder's branch and that in the pre·
sent case the agnates refused to give consent from
selfish motives in order to protect their reversionary interest, and therefore the 11.doption made with
the consent of the remoter sapinda was valid.
The main question that . a.rises in this appeal
is whether the refusai by the nearer sapindas to
give consent to the adoption as learned counsel for
the respondenta described it, or the giving of the
constnt subject to a condition as learned counsel
fof the appellant calls it, is iμiproper, wit~ tJiii
11161
V.T.S.
Chandaraukhara
,\Juda/iur
v.
K u/andaiwlu
Mudoli.,
S1tbba Rao .r.
Jiff
Y. T.S.
ChanJat...i.liara
Mudal;ar
v.
KuJand.iwlu
M"dclial
S®HllaoJ,
450
SUPREME OOURT REPORTS r1ooa]
remit the adoption made by the let defendant of
the 2nd defendant with the consent of the remoter
reversioner w&& valid under the Hindu law.
Before we notice the relevent case·law and
textual authority on the subject, it would be convenient to clear the ground. Thie appeal arises
out of an adoption made in the Dravida country
and this case is governed by the school of Hindu
law applioable to that part of the country. Further
wo are not concerned here with an adoption in a
Hindu joint family but only with one in a divided
family.
We must, therefore, steer clear of the
ramifications of the doctrine of consent in its
impact on an
adoption made by a
widow
in a joint Hindu family. It is not
disputed
that in a case where the last male-holdn is a divided member of the family, hie widow oan make an
adoption with the consent of a remoter eapinda if
a nean·r e&pinda or sapindas improperly refused to
give consent to the adoption. It is also common
case that an adoption of a boy by a. widow outside
the class of .eapindae ie valid.
Thie controversy centre11 round the question
whether in the present C&Be the conditional consent
given by some of the sapindae and the refusal by
the others to give consent to the adoption were
proper. This question depends for ib solution on
the a.newer we give to the following interrelated
questions : (I) What is the source and the content of the power of the widow to adopt a boy ?
(2) What is the object of adoption ? (3)
Why is
the condition of consent of the sapindas for an
adoption requ\red under the Hindu law for itA
v111idity ? (4 J What ie the scope of the power of
the sapinda.e to give con•ent to an adoption by a.
widow and the manner of its exercise ?; and
(5)
What are the relevant circumstances a sapinda
ha.a to bear in mind in Pxercieing his power to give
consent to an adoption ?
·
•
2 s.c.n..
SUPREME COURT REPOR'.l'S
451
"
It is common place that a widow adopts a
boy to her husband and that nobody except a
widow can make an adoption .to her husband. The
reason is that Hindu law recognizes her not merely
as an agent of her husband but, to use the felicitous
Hindu metaphor, as his surviving half : see Brihas.
pati X.XV, II and Yagnavalkya I, 156. In Sarkar
Sastri's Hindu Law. 8th edn., pp. 161-162, it is,
stated that though according to the commentaries
t' the widow adopts in her own right, the modern
view is that she acts merely as a delegate or representative of her husband, that ia to say, she is
only an instrument through whom the husband is
supposed to act. Mulla in his book "Principles of
Hindu Law" stated that she aots as a delegate of
her husband.
The Judicial Committee in Balusu Guru.
lingaswami v. Balusu Ramlakshmamna (') pointed
out that. if the consent of the husband's kinsmen
., '
has been obtained, the widow's power to adopt is
i.
co_-extensive with that of her husband. It is, there·
fore, clear that a Hindu widow in making au
adoption exercises a power which she alone can
exercise, though her competency is conditioned by
other limitations which we shall consider at a later
stage. Whether she was authorised by her husband
to take a boy in adoption or whether she obtained
the assent of the sapindas, her discretion to make
~ an adoption, or not to make it, is absolute and
uncontrolled. She is not bound to make an adop·
tion and she cannot be compelled to do so. But
if she choosiis to take a boy in adoption the.re is an
essential distinction between the scope of the
authority given by her husband and that of the
assent ·given by the sapindas. As the widow acts
. ,,. only as a delegate or representative of her husband,
her discretion in making an adoption is strictly
conditioned by the terms of the authority oonferred
\l) (1899] I.LR. 22 Mad. 398, tOI.
V. T.S.
ChandtWa.silchdtU
MudtJlia'
••
Kulandaioelu
"lludali11r
Subb•R4oJ.
JHI
V. T.S
CAattdaro11•.lGr•
MudoJU.
•
Kul...to;..Ju
M~oU..
'52
stJ'PREME OOURT REl'OB.'l'S fl96aJ
on her. But in the absenoe of a.ny specifio authori1&tion by her husband, her power to take a boy in
adoption is coterminus with that of her husband,
subject only to the assent of the eapindas. To put
it differently, the power to adopt is that of the
widow as the representative of her husband and
the requirement of 888ent of the eapindas is only a
protection against the misuse of it.
It is not,
therefore, right to equate the authority of a
husband with the assent of the eapindas. If this
•
distinction is borne in mind, it will be clear that in
essence the adoption is an aot of the widow
a.nd the role of the sapindae is only that of
advisers.
The next question is, what is the object of
adoption ? It would be unnecessary and even be
pedantio if we attempted to consider the old Hindu
Ia w texts at this very late stage in the evolution of
Hindu law on the subject, for the law on this aepeot
had befon fully and adequately considered by the
Judioia.I Committee from time to time. It would
be sufficient if we notic6d a few of the leading
decisionP on the subject.
Sir James W. Colvile, speaking for the Judicial Committee, in The Collector of Madurai v.
Mool.too Ramalinga Sathupathy (1) observed :
"The power to adopt when not actually
given by the husband oa.n only be exeroised
when a foundation for it is laid in the other· ,
wise negleoted observanoe of religious duty,
as understood by Hindoos'•.
The Judioial Committee again speaking through
Sir Jawes W. Colvile in Sir R11.9ht.11rw.dha v. Sri
Brozo K iahore (') restated the principle with some
modification thus :
"It may be the duty of a Court of Juetioe
administering the Hindu law to consider the
(I) [168'1] 12 M.l.A. 317, 442.
(2) 1876) L.R. JI.A., IS., UIS.
-,
2 s.o.n.
SUPREME OOURT REroB.ts
4li3
religious duty of adopting a sou as the eBSential foundation of the law of adoption; and
the effect of an adoption upon the devolution
of property as a mere legal consequence"
But he hastened to add :
"But it is impoBSible not to see-that there
are grave social objections ·to making the
succession of property-and it may be in the
1
case of collateral succession, as in the present
instance, the rights of parties in actual posseesion-·dependent on the caprice of a womai:i,
subject to all the pernicious influences which
interested advisers are too apt in India to
exert over women possessed of, or capable
of exercising dominion over, property".
This caution given by the Judicial Committee is
. relied upon to emphasize the point that right to
property of the last male-holder is a dominant
,,
consideration in the matter of taking a boy in
~-
adoption. But, if the passage was read along with
that preceding it, it would be obvious that t.he
Judicial· Committee emphasized the performance
of a religious duty as an essential foundation of the
law of adoption, though it did not fail to notice
that the devolution of property was a legal oonsequence. In Raja Vellanki Venkata f(mhna Row v.
Venkata Rama Lakshmi Narsayya (1), the Judicial
Committee through Sir James W. Colvile- reiterated
' the priucip!'.l th&t adoption was made by a widow
only in a bona fide performance' of a religiobs duty.
In V ellra Basavaraju v. Bal,asurya P'l"MrJda lf.uo- (')
Mr. Ameer Ali, delivering the judgment on behalf
of the Board, appeared to strike a new note and
lay more emphasis on property -rights. Thi' Board
gave as _one of its reasons why the ooosent of
Y divided brothers was required, namely. that they
(I) (1876) L.R. 4 I.A. I, 14.
(2} fl918) L.R. 45 I.A. 265, 273.
IHI
V. T. 8.
Chanarauk4AN
Mudaliar
.. -
JruUndaiVllU
Mudaliar
-
SubiaBa.J.
IHI
V. T. 8.
Cltafli.au•llu•
Jfu4a// ..
••
Ko1"""4i..tu
Jludaliaf'
4M
SUPREME OOORT Rl!:POR.TS [11163]
had an interest in the protection of the inheritance.
The Judicial Committee observed :
"It is true that in the judgment of this
Board in the Ramnad case (') some expressions
are used which might imply that the question
of rever~ionary interest forms only a secondary consideration in
determining
what
eapindas' aeeent is primarily requisite, but the
remarks that follow as to the right of co-parcenere in an undivided family to coneider the
expediency of introducing a new co-paroener,
coupled with the observations of the Board
in the subsequent case (4), show clearly that
rights to property cannot be left out of consideration
in
the determination of the
question".
It may be said with some justification that till this
stage the Judicial Committee had not clearly
disclosed its mind, but was wavering between two
positions, namely, whether religious duty was th.,
sole object of adoption or whother proprietary
interests had an equal or a subordinate place with
or to that of a religious object. B'ld in Amurendra
Manaingh v. Snnatan Singh (')the Judicial Committee reconsidered its earlier decisiond, resurveyed
the entire law on the subject and veered round to
the view that the validity of an adoption was to
be determined by spiritual rather than temporal
ooneideratioos. Sir George Lowndes observed :
" ...... it is dear that the foundation of '
Brahminical doctrine of adoption is the duty
which every Hindu owes to his ancestors to
provide for the continuance of the line and the
solemnization of the neoeseary rites ............. "
"It oan, they think, hardly be doubtud
that in this doctrine the devolution of property, though recognized as the inherent right
(I) (11158) ll(M.I.A. 397. \2) (1933) L.R. 60 I.A. :l_.2, 2411.
•
,· ..
2 s.c.R.
SUPREM:E COURT REPORTS
455
of son, is altc;igether a secondary considera-
•
»
t1on ...................... .
"Having regard to this well-established
doctrine as to the religious efficacy of sonship,.
their Lordships feel that great caution should
be observed in shutting the door upon any'
authorized adoption by the widow of a sonless
man ................ Nor do the
authoritative
texts appear to limit the exercise of the power
by any considerations of property."
This decision is, therefore, a clear pronouncement
by. the highest judicial authority of the time that
the . substitution of a son of the deceased for spiritual reasons is the essence of adoption and the consequ'mt devolution of property is mere accessory to
it. Whatever ambiguity there may have still remained it was dispelled by a later decision of the
Privy Council in Gkanta China Rarrul8Uabbayya v,
Moparthi Ohenchuramayya (1), wherein Sir Madhavan Nair, delivering the judgment ()D behalf or the
• Board, after .a resurvey of the textual authorities
and the earlier decisions, observed at p. 170:
"Under the Hindu law it is the "taking of
a aon" as a substitute for the failure of male
issue. Its object is two-fold: ( 1) to secure
the performance of the funeral rites or the
person to whom the adoption ia made; and
~
(2) to preserve the continuance or hie lineage ...
Adverting' to observation of_ Mr. Ameer Ali in
V eera Benavaraju v. Balasurya Prasada Rao ('), he
proceeded to state at p. 175:
:•The utmost that could be said in favour
of the appellants is the statement in . the
judgment that right to property cannot be
left out of consideration in the determination of the question", . while the spiritual
(I) (19+7) L.R. 741.A. 162.
(2) (1918) L.R. 451.A 265, 275.
1go1
Y. T.S.
C"4"®'""dliM•
Mvdaliat'
••
lfuland41H/u
Mui#liar
SutbaRaoJ,
V.T.S.
~,,...
JlaJolwr
••
Klhodai.U.
Jl.aiial
.\'1166c RM J.
SUPREME COURT REPORTS [1963]
welfare of the deceased also is referred to in
the course of tho judgment. That the above
regular view of adopt.ion cannot any longer
be maintained appear~ to be clear from the
judgment
of
the Board in
Amarendra
Mansingh v, Sanatan Singh(')
Reverting to the object of adoption, he remarked
at p. 179:
"Their lordships do not desire to la hour
this point, as in their view the following
opinion of the Board, delivered by Sir George
Lowndes in Amarendra's ca.'le (1) should be
considered to have sottlod the question finally
so far as the Board is concerned."
It may, therefore, sR.fely be held that the validity of
an adoption has to be judged he spiritual rather
than temporal considerations and that devolution
of property is only of secondary importance.
The next question is, why does the Hindu law •
iilsi&t upon the assent of the sapindas as a pre·
requisite for the validity of an adoption made by
a widow ? A basis for the doctrine of consent may
be discovered in the well· known text of vasishtas:
"Let not a woman give or aooept a eon
·except with the assent of her Lord."
The following two texts of YagnaTalkya in Chapter
l, verse 85 and in Chapter 2, verse 130 are also
ordinarily relied upon sustain the said doctrine:
"Let her father protect a maiden; her
husband a married woman; sons in old ega;
if nom• of these, other gnatis (Kinsmen). She
is not fit for independence.
"He whom his father or mother gives in ,
adoption is Dattaka (a son given)."
(1)
(19~3) LR. 60 1. A. 242, 248,
•
2 S.O.R.
SUPREME OOUR't REl'ORTB
A brief summary of the evolution of the law by
subsequent commentators by the process of interpretation of the said two .texts is found in the judgment
of a division Bench of the Madras High Court in
Sundara Rama Rao v. Satyanarayanamurti (1). It w_ail
pointed out therein how Devanna Bhatta reconciled
the two seemingly contradictory · positions by lay·
ing· down that a Hindu widow could give her son
in adoption ·if she be authorized by an independent
male, how by parity of reasoning the said principle
was extended to .a widow taking a boy in adoption,
how the same view was expressed by Nanda"
panditha, how Vidyaranyaswami in his Dattaka
Mimamsa recognized the validity of an adoption by
a widow with the permission of the fat.her, etc.,
and how theJater commentators relying upon the
word "etc.''. evolved a thesis that the word "father"
in the text was only iilustrative, and · gradually extended -it to othllr kinsmen. The said doctrine is
mainly founded on the state of perpetual tutelage .
assigned to women by Hindu law expressed ·so
tersely and clearly in the well-known text of
Yagnavalkya in Chapter I, verse 85,_ quoted above.
The leading decision, which may be described
as classic on the subject, is what is popularly known
as the Ramnad case ('). Sir James W. Colvile, who
has made a real contribution to the development
of this aspect of Hindu law, o~served at p. 439:
"But they (tbe opinions of Pandits) shqw
a considerable concurrence of opinion, to the
effect 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 the rule is clearly stated at p. 442
thus:
·
·
- .,
''The assent of kinsmen seems to be
required by reason of the presumed_incapaoity
(lj LU. 1950 M'.ado 461.
(2)
(1868) 12 MJ.A. 897, <Kl.
lHS
. Y. T. IJ,
Clintfarouillo1~
Muia/;.,
••
K11l•AiDll•
Mudaliar
Su!6oB .. J,
1~1
v.r.s.
Oandara•6kMto
Mu4'rliar
v.
K ulandai•lu
Ml.UUliu,.
Subb• RtlO J.
458
SUPREME COURT REPORTS [1963]
of women for independence, rather than the
necetlflity of procuring the consent of all these
whose vossible aud leversiouary interest in
the estate would be dofeated hy the ;doption.
The nature and effect of the consent is stated thus:
"All that can be said is, that there should
be such evidence of the assent of kinsmen 88
suffices to show, that the act is done by the
Widow in the provn and bona fie,d perform&nco of a religious duty, and neither capriciously nor from a corrupt motive."
The same principle has been affirmed and restated
by the Judicial Committee in subaequent decisions:
See Raja VeUunlci Venkata Krishnti Row v. Venkaya
Rama Lakshmi Narsayya 11), Veera Basayaraju v.
BalaB'Urya Prasada Rao(') Sri Krishnayya Rao 't.
Surra Rao Bahadur Guru (')
and Ghanta China
Ramasubbayya v. Moparthi Chenchuramayya (').
It will be aeon that the reason for the rule is
not the poSBible deprivation of the proprietary interests of the reversioners . but the state of perpetual tutelage of women, and the (IOn&ent of kinsmen
was considered to be an aSBurance that it was a
bona f i<k performance of a religious duty and a
sufficient guarantee against any capricious aetion by
the widow in taking a boy in adoption.
The next question, which is very impor~nt
for the present inquiry, is, what is the scope and
content of the power of consent the Hindu Jaw
plaocs in the hands of the• kinsmen ? and why
does
the
Hindu Jaw confer
the said power
on
the
kinsmen? In tl11:
J/11mr111d Cuu ('),
the judicial Committee described the father of
tho
husband
as
the
natural
guardilm
of
(I) (1876) L.R. 4 I.A. 1. 14.
(2)
(IQl8) L.R. 41 I.A. U.S. 273.
(3)
(1935) 69 MLJ. 388.
(41
(1917) L.R. 741.A. 162.
(S)
(1868) I~ M.l.A. 397. ff2.
+
...
-
j
2 s.c.R.
SUPREME COURT REPORTS
459
the widow and her venerable protector. In Raja
Vellanlci
Venlcata Krishna Rrw v. Venlcata Rama
Lakshmi Narsayya (1}; the Judicial Committee des·
cribed the sapindas as the family council; in
Venlcamma v. Sul!ra.maniam (') as the natural
advisers of the widow; in Veera Basayaraju v.
· Balasurya Pra.sada Rao (') as her natural guardians
and protectors of her interest; in Sri Krishnayya
Ra-0 v. S·uryu
R11.o Balwrl·u.r Gil.ru (') as family
council, natural guardians and protectors of her
interest; and in
Gh11.n~1. Ohinri Rnmasnbbnyya v:
Moparthi
Oherwhura.ma.yyn (6)
as the
widow's
guardians
and competent
advisers.
Whatever
phraseology may have been used in the various
decisions, it is manifest that all of them are only
consistent with their exercisin;;-: fid11Ciary power
having regard to the object for which tho said
power was conferred on them. The scope of the
exercise of the . power depends ( 1) on the nature
of the
power,
and
(2J on the object for
which it ·is
exercised.
The
nature of the
power being
fiduciary
in
character, · it is
implicit in it that it ·shall not be exercised so as
to further the personal interests of the sapindas.
The law does not countenance a conflict between duty
and interest, and if there is any such conflict the
duty is always ma.de to prevail over the interest. It
would be a negation of the fiduciary duty, were we
to hold that a sa.pinda could refuse. to give his
consent on the ground that the members of his branch
or those of his brother's would be deprived of their
inheritance,. If that was the object of the refusal,
it could not make any difference in the legal
results, howsoever the intention was camouflaged.
Suppose a sapinda gives his consent on the condition that a member of his branch only should be
adopted.
In effect and substance he introdiwe11.
(I) (1876) L.R. 4 I.A. I, 14.
(2) (1906) L.R. 34 J.A, 22.
(3) (1918) LR. 45 I.A. 265, )73.
(4) \ 193.~) 69 M.q. 348
15 l ( 19' 7) L.R .14 (.A. lfll.
1951
V.T. S.
O!iondara.Uha1 a.
11luda/iar
••
K ulanda1111lu
Mudalitr
Jin
Y.T.S. a.--
Mttdalior
Y.
Euload.oiorlu
Jludaicr
460
SUPREME OOURT REPOR'l'S [1963]
his personal interest ia the matter of bis &88ent,
with a view to secure the properties to his branch.
It would only be a matter of degree should he
extend the choice of the widow to the divided
branches of his family comprehending a. large group
of sapinda.s, for even in tha.t case the sapinda. seeks
to inforoe his choice on the widow on extraneous
considerations.
In giving or withholding
bis
consent in his capacity as guurdian or the protector
.of the widow, the sapinda. should form an honest
and independent judgment on the advisability or
otherwise of the proposed adoption with reference
to the widow's branch of the family: see Sri
Kriahnayya Rao v. Surya Rao Bahadur Garu (').
Sapinda should bring to bei1r an impartial and
judicial mind on tho problem pr1>sented to him and
should not ha served by extraneous a.nd irrelevant
considerations. He aha.II ask himself two que~tions,
viz., (i) whether the proposed adoption would
achieve the object for which it was intended, and
(ii) whether the boy selected was duly qualified.
We ha.ve already noticed tha.t the object of the
adoption is two-fold: (1) to secure. the performance
of the funeral rites of the person to whom the
adoption is made, and (2) to preserve the continua.nee of his lineage. The sa. pinda. should first
answer the question whether the proposed adoption
would achieve the said purpose.