P. Sivasuryanarayana Chetty alias Alleyya, minor by next friend Seshamma vs P. Audinarayana Chetti and Another

M. Venkatasubba Rao, J.—This appeal was directed to be posted before a Bench of three Judges, as it was thought it would become

necessary to examine conflicting decisions on the points raised.

The facts have been fully and lucidly set out by Mr. Ramappa in his judgment and we shall therefore refer only to such of them as have an

immediate bearing on the questions at issue. There were three brothers Audinarayana, Venkatasubbayya and Subbaroya. Venkatasubbayya died

in 1926 and his minor son is the plaintiff. The second defendant is the widow of Subbaroya, who died in 1931. Audinarayana, the surviving brother

is the first defendant. The plaintiff alleged in his plaint that on the strength of the first defendant''s consent, which he attacked as being fraudulent and

corrupt, the second defendant proposed to take in adoption, a boy by name Radhakrishna, her brother''s son, and the suit was brought for a

declaration that the consent was invalid and for an injunction restraining the widow from making the intended adoption.

We must at the outset state that in the lower Court it was objected on behalf of the defence, that a suit such as the present, asking for a

declaration of the sort claimed, is not legally maintainable. The objection was expressly abandoned before us and therefore we have not had to

consider the question whether the present suit does lie or not. We refer to this, in order to guard against our decision being understood as involving

any pronouncement on that point.

Now to return to the facts, the first defendant''s consent was given by a deed dated 26th January, 1933, which was registered. The suit was

filed on the following day, that is, the 27th January and on the 24th July, when the action was pending, the first defendant sent a notice to the

widow revoking his consent.

Two questions have been raised: first, whether the first defendant''s consent was given with a fraudulent or corrupt motive and was therefore not

sufficient to validate the adoption and secondly, whether the subsequent revocation was proper and valid.

[After dealing with the evidence on the question whether the sapinda''s consent was influenced by fraudulent or corrupt motives and finding them

not existing His Lordship proceeded.]

Then we pass on to the question whether a sapinda''s consent is revocable and if so, whether the revocation here is valid. As the lower Court

points out, the first defendant in revoking his consent acted arbitrarily. As already mentioned, he gave his consent on the 26th January, 1933; in his

written statement, filed on the 23rd March, there is a re-affirmation by him of his previous consent, which he wishes should remain in force. But

within a few months, he changed his mind and purported to cancel it, but had the honesty to admit in the witness-box that his revocation was due

to ""family misunderstandings"", though he would add that he would prefer a Bokkali boy. On this evidence the learned Judge''s conclusion that the

revocation was arbitrary, is perfectly justified. As Seshagiri Aiyar, J., points out in Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87 : ILR 41

Mad. 604 the assent of a sapinda is presumptive evidence of the bona fides to the widow''s act. That being of the essence of the doctrine of

consent, it is impossible to uphold the contention that a sapinda may at his pleasure withdraw his consent. It has been faintly argued that the

discretion in the exercise of which a sapinda gives his consent, necessarily carries with it a power to revoke it. This is contrary to the spirit of the

Hindu Law, which treats a sapinda''s consent as amounting to an expression of his opinion that the adoption conduces to the spiritual benefit of the

deceased person. We without hesitation concur in the view of Seshagiri Aiyar, J., when a sapinda upon a dispassionate consideration of the

question once gives his consent, he cannot arbitrarily or capriciously withdraw it. Whether he can do so for justifiable reasons, is a matter we need

not go into, for, in the present case, there is not a shadow of justification for suggesting that such reasons exist.

Some analogy was suggested between a husband''s authority and a sapinda''s consent, but it is hardly necessary to remark that in this respect

they are entirely dissimilar. That a husband can revoke his authority, can admit of no doubt, although the statement by Sircar that he may revoke it

at any time before adoption"" is somewhat misleading, as any adoption by the widow must necessarily be only after the husband''s death and at that

time no question of revocation by him can possibly arise. (Sircar''s Hindu Law of Adoption, 2nd Edn., p. 237).

In the result, the appeal is dismissed with costs of the second respondent.