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Judgment
We regret we are unable to accept the finding of the learned Subordinate Judge that the assent of the sapindas, relied on and proved in this
case, is ""not enough."" At one part of his judgment he says:
The consent seems to have been obtained -by the representation that the husband had given her authority to adopt.
If this sentence is the only sentence in the judgment it may be possible to argue that he meant to give a finding that the consent was obtained by
such representation and no weight is to be attached to the word ""seems"". But, later on, he said: ""for aught one knows, they might simply have relied
on the representation, etc."" This later sentence shows that he had in his mind only the possibility that the consent was obtained by such
representation. All that he meant to find was that the defendants did not displace such possibility. It seems to us that a finding of this kind is not
enough to reject the sapinda''s assent.
It is true that a sapinda''s assent, to be the foundation of an adoption, must be obtained uninfluenced by any statement of the widow that there
was also the husband''s authority, if the evidence shows that the widow made such a statement. In Subramanyan v. Venkanna [1908] 26 Mad.
627 it appears as to the assent of the remoter gnatis that the widow
herself, in her evidence, states that she obtained their oral assent to the adoption by representing it to each of them that she had her husbands''s
authority.
As to the 3rd defendant''s assent the learned Judges say that it
would undoubtedly be inefficacious if it could be regarded as having been influenced by the widow''s allegations of authority from her husband.
The cases in Sri Varada Pratapa Raghunatha Das v. Sri Brozo Kishoro [1877] 1 Mad. 69 and Ganesa Ritnamaiya v. Gopala Ratnamaiya
[1879] 2 Mad. 270 are very clear cases against the sapinda''s consent. In the former case the widow
representing herself as having the written permission of her husband to adopt, asked the Rajah to give her a son in adoption,
and not to assent to an adoption. So in Ganesa Ratnamaiya v. Gopala Ratnamaiya [1879] 2 Mad. 270 the adoption was made ""in pursuance of a
permission given by her husband"" and the application to Sami Aiyar was
to give his son to be adopted in conformity with the authority which she had received from her husband.
These cases do not help us.
Without laying any rule of proof as to whether the party relying on the consent should show that it was uninfluenced by the widow''s statement
about the husband''s authority, or the party attacking should show that it was so influenced, we think the record in this case shows not only that
there is no evidence that the assent was given under the influence of the representation by the widow, but, on the other hand, also that the assent
was uninfluenced by the representation, if any. (The judgment then found on evidence that the consent of the sapindas was not founded on the
statement of the widow.)