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Judgment
Oldfield, J.—The question in this case is, generally, whether 2nd defendant is the adopted son of the late Zamindar of Vegayammapata.
Plaintiff originally denied that any adoption ceremony had been performed but he abandoned that position at the trial. There and here he has pressed only four objections, two to the consent of the kinsmen, which, in the absence of authority from her deceased husband, 1st defendant, the widow required to enable her to make a valid adoption, and two to the capacity of 2nd defendant to be adopted. I deal with them in order.
Of the kinsman, two, Bhimasankara Row and Suryaprakasa Row, died during the trial. Neither informed 1st defendant of his reasons for not consenting to the adoption. Vide Venkatakrishnamma v. Annapurnamma 23 M. 488 . The former in fact did not refuse his consent explicitly. Part of the lower Court's judgment is occupied with their failure to consent. But nothing has been said regarding it by plaintiff in this Court and J, therefore, turn at once to his attack on the four kinsmen who consented.
The allegation is, first that the consents of these four were obtained by corrupt means. Defendants before the trial naturally asked for particulars, bat the lower Court in its order, Exhibit CXLII, did not insist on them on account of the delay in making the request, which may have been correct although fit also gave the remarkable reason that, plaintiff having stated that the corruption was by payment of money defendants were entitled to nothing more and could not expect plaintiff to disclose his evidence. In fast plaintiff, in Exhibit CXLII (6), had said that he could not give any particulars of the money payments alleged, until he had inspected the defendants'' amounts; and his case must therefore, start under the strongest suspicion that the detailed story he attempted to prove was invented for the trial. It was that Rs. 520 were paid to the four kinsmen concerned; and there was also evidence to show that they were poor and would easily be corrupted, that they were in funds more or less shortly after the alleged payments, and that 1st defendant's accounts contained a fictitious entry, by which the withdrawal of so large a sum from her treasury could have been covered. It is, however, unnecessary to pursue this in detail, because, after we had intimated our opinion as to the evidence regarding one of the four, Akkiraju, Mr. P. Narayanamurthy for plaintiff said that he would, not argue against the finding in respect of the others. As regards Akkiraju the evidence of his poverty may be accepted. That relating to his sudden accession of funds showed only that he made a purchase seven months after the alleged payment; and there is no necessary or probable connection between the two. The entry in 1st defendant's accounts was made in June, whereas the bribe was paid, if at all, in the previous January and, as the large payment entered is described as representing previous disbursements made from time to time for a school, there is no re son why the closure of the school very shortly afterwards should justify suspicion of it. But all this is of very little moment, when the direct evidence regarding the payment of the money is considered. To leave out of account the uncorroborated evidence of the 3rd witness for the plaintiff, a person of no particular credit who said that in a conversation on an unspecified date Akkiraju told him of the receipt of the money, there is only the evidence of the 8th witness for the plaintiff regarding its actual payment, described as having taken place in the afternoon at so public a place as a Sub- Registrar's office. He is a servant by profession and deposed, with a certain amount of prevaricator, that Akkiraju's share was kept by his master, one Buchiraju, who is now dead, Akkiraju's co son in-law and creditor.
There is the evidence of the 14th witness for the plaintiff, a person who had to borrow petty sums from his master Buchiraju for his wife's funeral and the medical treatment of his wife, that seven months later this money was used to settle a debt due by Akkiraju and to obtain a re sale of property previously sold for its discharge. That evidence is improbable in its details, especially in the statement that, when Rs. 1,553-0-0 were tendered by the witness to Buchiraju as provided by the first sale deed, Exhibit A A, the latter refused it. Akkiraju no doubt was not examined. But there is no reason for believing this evidence or holding that the payment of any part of the five thousand rupees to him is in any degree corroborated by it. I agree with the lower Court that the payment is not proved and that there is no ground for a conclusion that the consents of these four kinsmen were obtained by corruption.
The lower Court, however, in a portion of its judgment, which it is not possible to understand, has nevertheless held that these consents were not such as to show that the adoption was made by the widow, not for corrupt or capricious motives, but on a fair consideration of what may be called the family council, although it afterwards found that ""let defendant's motive is not very material in itself and that plaintiff can question the 1st defendant's motive in so far as it can be inferred from the conduct of the sapindas, who gave their consent."" If this means, firstly, that the consent of the sapindas is material as guaranteeing the propriety of the widow's action and, secondly, that nothing can be deduced from the consent owing to the circumstances in which it was given, the first conclusion may be endorsed. But, as regards the second, it has been found that consents were given, which are not shown to have been obtained by fraud, coercion or corruption; and that is sufficient, for the Court's right to scrutinize the kinsmen's reasons extends only to cases, in which consents are refuted, not to those in which they are granted. The responsibility is imposed by the law on the kinsmen and the Court cannot interfere with their exercise of it. We have here, subject to the argument to be next considered, the contents of the four nearest sapindas and if plaintiffs text objection cannot be sustained the authority thus conveyed will be sufficient.
That objection is that plaintiff, as the daughter's son of the widow's deceased husband, was entitled to be consulted and that the adoption made without consulting him was bad.
There is no explicit decision that a daughter's son is to be considered a kinsman or gnati or should be consulted regarding an adoption. But plaintiff relies on, and the lower Court has found for him on consideration of, certain cases, in which consultation with or consent of the reversionary heirs of the deceased, to whom the adoption is, made, is referred to as essential, and that he is such an heir there is no doubt, Contra, however, it is argued that in those cases the position of the daughter's son was not in question and that the reference to the reversionary heirs was made loosely, nothing in the circumstances turning on the distinction between them and the agnates, whose right to be consulted arises only from their responsibility for the spiritual welfare of the deceased. Plaintiff's contention has been supported by reference to principle and to authorities.
It is first material that in the earliest authority, the decision in the Ramnad case Collector of Madura v. Moottoo Ramalinga Satupathy 12 M.I.A.
397 1 by the Judicial Committee in 1868, the doctrine of the widow's power to adopt with the consent of the kinsmen was recognized, not so much with reference to anything explicit in early texts as because it had been received by the particular school of Hindu Law, which governed the district in question. Accordingly, after reference to such reception as evidenced by the works of Mr. Colebrooke and of Sir Thomas Strange and the opinions of the Pandits the Committee observed that the assents of the kinsmen seem to be required by reason of the presumed incapacity of woman for independence rather than the necessity for procuring the consent of all those whose possible and reversionary interest would be defeated by the adoption. That this was the basis of the Committee's conclusion is material in connection with the texts on which plaintiff has relied, as indicating the basis on which the doctrine is really founded. For it will be seen that the portions of them on which plaintiff's argument depends, is not that which the Committee had in mind.
The earliest of the texts is Manu, Ch. V, pl. 148, which runs in Sir W. Jones translation: "In childhood must a woman be dependent on her father; in youth on her husband, her lord being dead, on her sons.... A woman must never seek independence." This is repeated in Ch. IX, pl. 3 and its last sentence may be supposed to be the earliest appearance of the foundation for the Committee's conclusion, so far as texts were in question. Plaintiff, however, relies on the gloss of the well-known commentator--Kulluka Bhatta, printed by Sir W. ones upon sentence just quoted: ""If she has no sons, on the near kinsmen of her husband; if he left no kinsmen, on those of her father; if she has no paternal kinsman, on the sovereign;"" and it is on this and similar references to the widow's dependence that the theory of the right of the agnates to concern themselves with her adoption rests. Another such reference is to be found in Yagnavalkya Ch. I, verse 85: ""Let a female be taken care of by her father, while a maiden; by her husband when married; and by her sons in old age. If none of these exist, let other gnatis take care of her. A woman is never fit for independence;"" and this, as appears from Adusumalli Krishnayya v. Adusumalli Lakshmipathi 32 Ind. Cas. 253, is interpreted by Viramitrodaya, as follows: "But, when the husband is dead, the assent of those only is necessary, on whom she is dependent." Again, in Narada, Ch. XIII, verse 28, quoted in Ghose's Principles of Hindu Law, 3rd Edition, Vol. 1, page 323, ""after the death of her lord, the relations of the husband shall be the guardian of the woman, who has no son. They shall have full authority to control her, to regulate her manner of life and maintain her. When the husband's family is extinct or contains no male or is reduced to poverty, or when no one related to it within the degree of a sapinda is left, the father's relations shall be the guardians of a woman."" And there is, lastly, the statement of Mr. Colebrooke in his commentary on the Mitakshara,
Ch. I, Section XI, Pl. 9, that whilst the author of the Vyavaharamayuka admits the right of the widow to adopt without her husband's authority he requires that she shall have the express sanction of his kinsmen, and there are certain cases to the same effect in Strange's, Hindu Law and Hindu Law Cases. Plaintiff argues that the reference to kinsmen in those cases include cognates as well as agnates, not only because this is entailed by the words used but also because it is involved in the underlying principle.
The term "Kinsmen" is, of course, ambiguous; and reference is necessary to the words used in the Sanskrit texts, "sapinda" and "gnati". But the former may or may not include bhinna ghotra as wall as ghotraja sapindas, the daughter's son being included only in the former; and we have not been shown authority for holding that Kulluka Bhatta in his gloss was using it in the one sense rather than the other. Similarly, as regards the reference to the exhaustion of the husband's sapindas in Narada. The difficulties in the way of adoption of one invariable rendering for the term in the case of one text, the Mitakshara, are illustrated by reference to Ramchandra Martand v. Vinayak 25 Ind. Cas. 290 . It is, however, significant that in the Ramnad case 12 M.I.A. 397 1 one Muthusami, a Samanodaka, was excluded from the category of sapindas, and that the Judicial Committee may, therefore, be supposed to have used the term in its stricter sense, It is possible to say only that plaintiff has not established the inclusion of bhinna gotra sapindas in it, and I, therefore, turn to the other expression which is in question.
The word gnati in its primary significance is no doubt limited to agnates. Vide Apte's Dictionary. Mr. Ghose, in one passage in his Principles of Hindu Law at Volume 1, page 183, dealing with inheritance, has no doubt translated it sapinda but in connection with an argument limiting sapindas to agnates, and elsewhere in connection with adoption (page 677) he translates it as agnate directly. In Mr. Mandlik's Hindu Law, at page 57, the word is rendered in the passage from Yagnavalkya already quoted as Clansmen and in West and Bubler (A Digest of the Hindu Law of Inheritance, Partition and Adoption, etc.,) at page 1,006 as the Gentile relatives, the agnatic significance being clear. In Adusumalli Krishnayya v. Adusumalli Lakshmipathi 32 Ind. Cas. 253 the decision in Chinnakimid case Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo
1 M. 69 ] was read as showing that the text of Yagnavalkya should be understood as limiting the expression "gnatis" to those who are in the line of heirs to the last bolder and to this decision I shall return. But in Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind Cas. 706, the Judicial Committee at page 1004 Page of 41 M.--Ed. itself explained the Ramnad case 1 as deciding that the wid12 M.I.A. 397ow might adopt with the consent of the male agnates. All this is against and nothing has been adduced in favour of this part of plaintiff's argument. It is in fact on the theory as deduced from the underlying principle that; he relies.
Before examining that theory I refer to one form, in which it has been supported, that the daughter's son's consent is required to validate the widow's adoption, because it is required, in the case of her alienations, his heirship being the reason in both cases; and there is no doubt that this argument is referred to, although it does not appear to have been pursued in Sunkuru Suryanarayana v. Sunkuru Ramadas 43 Ind. Cas. 526 and Vinayak v. Govind 2 Bom. L.R. 820 where the extract given above from Narada is quoted, and by the Judicial Committee in Veerabasavaraju Pantula v. Balasurya Prasada Rao 48 Ind Cas. 706 and it may by admitted that, so far as the character of the consent is considered in them as presumptive evidence, to use the words of Seshagiri Aiyar, J., in the first of these authorities, of the goodness of the widow's act, the analogy may be instructive, it does not, however, follow and it is not the case that a general argument from the persons who must give and the motives recognised for requiring consents in the one class of cases to the persons and motives appropriate in the other is admissible. For to contrast them, consultation with the kinsmen, if not, their consent, is a condition precedent to a valid adoption, one consenting person may be regarded as representing others; and the consent of all who have to be consulted is not necessary. But in the case of an alienation the law, as stated recently in Rangasami Gounden v. Nachiappa Gounden 60 Ind. Cas. 498 , is that an aliention can be supported on its merits with reference to necessity and independently of consent; that consent, not merely consultation, is essential, and that the consent of every person who may fairly be expected to be interested to dispute the transaction, is required. And in view of these differences it would be unsafe to assume, what has never statedly been decided, that the principle underlying the validation of the widow's act by consent of or consultation with other persons is the same in the two
cases. The view of the necessity for the consent?, for which plaintiff contends, is that they are required as a guarantee for the widow's motives in adopting, which should be, not only the promotion of the spiritual interests of her deceased husband, with which admittedly the daughter's son is not concerned, but also the protection of his estate for his heirs, and that the daughter's son being among those heirs is entitled to a voice in deliberations which affect his interests. It is no doubt not a valid objection to this theory that no similar claim is made for the daughter, who is a nearer heir, since, as a woman, she must be regarded as equally incompetent with the widow and as incapable of advising her. But it is a practical consideration that, ordinarily, the daughter's son will be a minor and his advise will be useless, when the adoption is under discussion. Another difficulty arises in connection with the position of the daughter's son, in the order of heirs before the parents and other agnates, since it is impossible to reconcile the right of the first mentioned to express a decisive opinion with the observations in the Ramnad case 12 M.I.A. 397 1 which have also been quoted in later decisions on the exceptional value to be attached to ""the consent of the father-in-law to whom the law points as the natural guardian and venerable protector of the widow,"" as in itself a sufficient justification for her action. In that case the purpose for which the assent of the kinsmen is insisted on is stated solely and unambiguously and in terms never subsequently repudiated as being to show that the act was done by the widow in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive; "and the religious obligation to adopt" in order to complete or fulfil defective religious rites is mentioned. Again, in the Chinnakimidi case 1 M. 69 there was a reference to the principle that the validity of an adoption is to be determined rather by spiritual than temporal consideration?, that the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution of property an accessory of it. This statement is no doubt made by way of an argumentum ad hominem, in respect of a previous judgment of Holloway, J., and it is followed by the observation that, while it may be the duty of a Court of justice administering Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption and the effect on the devolution of the property as a mere legal consequence, it is impossible not to see that there are grave social objections to making the succession to property and, it may be, in the case of collateral succession the right of persons actually in possession dependent on the caprice of a woman. But the only inference drawn was that the Court should keep the power strictly within the limits which the law has assigned to it apparently in the particular case under disposal by refusing to extend it, as Holloway, J., proposed, to authorise an adoption made with the consent of any one sapinda. The Ramnad case 12 M.I.A. 397 1 was further explained in the Guntur case [Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi I M. 174 and in connection with the requirement in the former that "the adoption should be made by the widow in the proper and bona fide performance of a religious duty and not capriciously or from a corrupt motive", it was observed that it "would be dangerous to introduce questions as to the particular motives operating on the mind of the widow" and that only proof of"" such assent on the part of the sapinda was required as should be sufficient to support the inference that the adoption was made, not from a capricious or corrupt motive, but upon a fair consideration by what may he called a family council of the expediency of substituting a son by adoption to the deceased husband."" These sages are the foundation of the doctrine of the consent of kinsmen as the widow's authority. Throughout them the religious motive insisted on in Ramnad case 12 M.I.A. 397 is not abandoned; and if in the Chinnakimidi case 3 I.A. 154 it is recognised that temporal considerations cannot be lost sight of, that can be explained consistently with the language used on the ground that reference to them will be a safeguard against the caprice or corrupt intention of the widow, as in many cases involving the disintegration of the estate. Adusumali Krishnayya v. Adusumi Ali Lakshmipathi 32 Ind. Cas. 253 supplies an actual instance of the entertainment by her of such an intention, in case one is required.
It is in fact only after a considerable interval and in the case last cited that plaintiff can find anything directly supporting his contention. There
Seshagiri Aiyar, J., after agreeing that the motive which should guide a widow, should be to minister to the spiritual wants of her husband, said that the assent of the sapindas should not necessarily be regarded as a religious act, because the text of Yagnavalkya already referred to implied that her protection by them in temporal affairs alone was contemplated. So far this is in plaintiff's favour. But it is not clear in what shape the argument from the existence of the religious motive was relied on or how its rejection influenced the decision, that the assent of a mere majority of sapindas, without reference to their character as mere reversioners was insufficient. For the learned Judge was dealing with a case, in which the consent of only one out of the six nearest sapindas had been obtained and the question was whether the other five should have been ignored. And he, therefore, had not to consider whether consultation with a more remote reversioner such as the present plaintiff, was obligatory or whether heirship, apart from spiritual responsibility, was material. He, in any case, proceeded to hold with reference to the interpretation placed on the text of Yagnavalkya by the Viramitrodaya that the guardianship of the widow did not vest in the whole body of gnatis, the natural interpretation being that she was dependent on those nearest to her husband; and he regarded the judgment in the Guntur case I M. 174 as negativing the plea that the widow in obtaining the consents did not act on spiritual considerations. Nothing then was actually decided against the view that the spiritual should be the dominant consideration and much was said in favour of its being so; and there is no departure from that view in the observation of the same learned Judge in Sunkuru Surayanarayana v. Sunkuru Ramadoss 43 Ind. Cas. 526 that the powers of consent had been given to the sapindas, as they were interested in the property and were expected to see that the spiritual welfare of the deceased was not jeopardized. Plaintiff relied lastly on the decision in Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind Cas. 706 . In this Court the question of spiritual motive was not dealt with, because the Bench; of which I was a member, reached a conclusion against the widow's authority on other grounds. But in appeal the Judicial Committee, confirming this Court's decision, referred to it at some length and undoubtedly specified the possession of an interest in the protection of the estate as a qualification for inclusion in what was described in the Guntur case 4 I.A. I as the family council. They, moreover, quoted the opinion expressed in Golapchandra Sirkar Sastri's Hindu Law of Adoption that adoption is more a temporal than a spiritual institution and that, the requisites for a valid adoption being all temporal, the spiritual considerations should not be allowed to influence the judgment regarding the secular essential. If it were clear that this opinion had been adopted by their Lordships, it would go far towards supporting plaintiff's contention, that a daughter's son, on whom no spiritual responsibility rests and whose temporal interest in the reversion is comparatively close, is entitled to be nonsuited. But in fact the judgment does not either before or after this quotation express approval, either comprehensive or qualified, of the views contained in it, and there is no attempt to reconcile or contrast them with the references to religious duty contained in extracts from the Ramnad case 12 M.I.A. 397 1 occurring elsewhere in the judgment, except a statement with reference to it and the Guntur case I M. 174 that rights of property cannot be left out of consideration when the question what sapindas consent is primarily requisite is under consideration. It may be added that the learned author in the sentence prior to that cited by their Lordships (Op. cit. page 259), apparently describing the opinion of this Court in language taken from the judgment in the Chinnakimidi case Ind. Dec.45 , admitted that it does not share his views; and I would observe with all respect that this reasoning, as it appears in earlier passages of his work (pages 43, 45, 142, 145), seems to be rather influenced by his own experience of the actual sentiments or conduct of particular sections of the public than by the origin and development of the doctrine of adoption by consent of kinsmen in the authorities usually relied on.
On these authorities the conclusion must, in my opinion, be that the spiritual motive is at least dominant and consultation with those, who can
appreciate it is essential. That the promotion of the deceased's estate should be excluded from consideration as a motive is, as the authorities recognize, not to be expected or desired; and the extent to which it should be or in particular cases has been considered with reference rather to an estimate of the purity of the widow's motives than to the reversioner's prospects, is incapable of precise definition. But the conclusion must be that it is of secondary importance; and that corroborates the construction placed on the actual wording of the texts by which the daughter's son, to whom, it is not disputed, only the temporal motive can be supposed to appeal, is not one of the gnatis, whom it is necessary for the widow to consult.
This conclusion entails that the consents obtained by the widow were a sufficient authority for her action and I therefore, turn to the first of
plaintiff's objections to the capacity of 2nd defendant for adoption. The facts on which it is based are that 1st defendant originally went through the ceremony of adopting him in 1900. A suit similar to that now before us was brought and the adoption was declared invalid by the lower Court on one ground, that he was incapable of adoption, being her daughter's son. She, however performed the ceremony of his upanayanam whilst an appeal to this Court was pending. After its decision against her on a different ground and the consequent failure of the adoption already made, she again on 24th January 1907 adopted 2nd defendant, that being the adoption with which we are concerned. The plaint averment regarding it was that, the ceremony of adoption having been performed with regard to 2nd defendant, although that adoption was found invalid, he was ineligible for any further adoption. On this the issue framed, it would seem without objection, was whether the adoption of a daughter's son"" (meaning apparently a person of a different gotra) "after his upanayanam is invalid?" and although there is some divergence from the pleadings that, it is agreed, is what we have to decide. It has been necessary to state the point thus fully, because it has been dealt with by the lower Court, not, as it apparently was presented to it and is presented here with reference to the general incapacity of a person, whose upanayanam has been performed, for adoption, but with reference to the effect of the upanayanam as introducing him into gotra of his adoptive family and the impossibility of his acquiring any further rights in it, in case a subsequent adoption should be made. To such an argument the answer would be simple, that either the upanayanam did introduce him into the new gotra and fix his position there, a a new adoption being superfluous, or that it did not and there would be no obstacle to an adoption, which would do so.
The argument, as it is put forward here, involves, it is plain, firstly, that the upanayanam, although celebrated by 1st defendant on the incorrect
assumption that 2nd defend ant had entered her family and become her son, was a valid performance of the ceremony, and secondly, that no person, who has undergone upanayanam, can be adopted into another gotra, inasmuch as his undergoing the ceremony in the gotra in which his spiritual duties are to be performed is an indispensable qualification for their performance."" On both points we have been referred to the opinion expressed in Bhattachary's Hindu Law, 3rd Edition, Volume I, page 456, that even if the upanayanam and marriage are performed in the family of the adopter, the informally adopted boy will not loose his rights in the family of his natural father"", and that "the ceremony of upanayanam performed by the adoptive father would be valid, as if performed by a volunteer priest." On the 2nd point above specified this cannot be accepted since the decision in Viraraghava v. Ramalinga 9 M. 148 , 3 Ind. Dec. 500 proceeds on the assumption which apparently was not and has not since been contested, that a boy who has received upanayanam outside the gotra, cannot enter it by adoption. On the first point, which alone remains, the opinion of the learned author, in support of which he adduces no authority, is contrary to the decision of Colville, O J., quoted by him in Sreemutty Rajcoomaree Dosses v. Nobo Coomar Mullick 1 Boulnois 137 : 3 Ind. Dec. 82 and also to the view taken in Sanskrit texts of good repute, of which we have been supplied with private translations, accepted by both sides. Thus, in the Dharma Sindhu, Nirnaya Sagara Press Edition, (a work referred to as authoritative in Mandlik's Hindu Law introduction LXX), at page 161, reference is made to one kind of upanayanam as that which is re-done on account of the first ceremony being inefficacious by reason of a defeat in any of its parts such as the time; and again at page 150 and in the Nirnaya Sindhu (a work cited in Trevelyan's Hindu Law, page 17) at p. 244 there is the dictum: "The father alone should perform the upanayanam of his son or in his absence the grandfather and in his absence the elder brother." In the Vaithianatha Dikshitiyam, Varnasrama Kanda Kumbakonam Grandha Edition, a work referred to in Viraraghava v. Ramalinga 3 Ind. Dec. 500 it is said at page 179 Page of
9 M.--Ed.: "The father is the primary or principal person entitled to perform upanayanam." and at page 172 (for the performance of upanayanam) only in the absence of any sagotraja (person of the same gotra) is a person of a different gotra to be sought for,"" Lastly, and this is important with reference to the last portion of Mr. Bhattachary's opinion, the Smriti Chandrike, Mysore Government Edition, lays down at page 88 that, ""he is called Guru, who does all the Samskaras (ceremonies) beginning with the Nisheka (nuptials) and ending with upanayanam and gives him (the boy) instruction in the Vedas. Here Guruhood belongs to the father alone and to nobody else. Thus, it is established that the father alone is a competent person to perform upanayanam and other ceremonies.... But that which is said that an Acharya (voluntary priest) performs the upanayanam is only applicable, when there is no father or when ho is disqualified. For there is no reason for leaving out a competent father.
Plaintiff has not met these extracts by citation of others and their result, which I, find no difficulty in accepting, seems to me to be that an upanayanam Will not be valid unless performed by the father or in his ab sense another kinsman in the family to which the boy concerned actually belongs, that his upanayanam performed in a family which be had not in fact entered, would be invalid; and that such an upanayanam can and should be performed again. This entails that the irregular performance of an upanaya nam in a family into which the boy is wrongly believed to have entered, is a nullity and is no bar to his subsequent adoption.
The result is that the lower Court's decision cannot stand and that we must, in order to the disposal of the case, call on it to return findings on the issues not yet dealt with Nos. 9, 10, 12, 13, 16. The findings will be returned on the evidence on record within two months after the re opening of the lower Court. Seven days will be allowed for filing objections.
Phillips, J.
I agree, and have nothing to add.
In compliance with the order contained in the above judgment, the Temporary Subordinate Judge of Rajahmundry submitted the following
Findings
The suit has been remitted by their Lordships of the High Court for findings on the following issues:
(9) Whether the adoption of a daughter's son is illegal and invalid according to Hindu Law?
(10) Whether the custom of adopting a daughter's son or a sister's son obtains among Brahmins throughout the Madras Presidency or whether, as contended by plaintiff, it obtains only in the southern districts of the Presidency and does not obtain in the Andhra or Telugu portion of this Presidency?
(11) Whether the circumstances in para graph 6 of the plaint are true, and, if so, whether they render the 2nd defendant's adoption invalid?
(12) Whether the succession to the estate of Vegayammapeta is governed by the law of lineal primogeniture?
(16) Whether the adoption is contrary to the provisions of the Impartible Estates Act?
9th issue.--In the case in Bhagwan Singh v. Bhagwan Singh 21 A. 412 (P.C.) their Lordships of the Privy Council held that the adoption of a mother's sister's son by a Hindu of any of the three regenerate classes (Brahmins, Kshatriyas and Vaisyas), equally with the adoption of a daughter's son or a sister's son, is contrary to Hindu Law, that the ancient texts condemning such adoptions are not merely monitory but have been judicially decided by all the Courts to be positive prohibitions, and that their effect is to make such adoptions wholly void. Their Lordships also held that the law on the subject has been settled in such a way and for such a length of time as to make it incompetent to a Court of justice to treat the question now as an open one The decision of their Lordships is quite imperative and conclusive on the point and it must accordingly be held on the 9th issue that the adoption of a daughter's son among the three regenerate classes is illegal and invalid according to Hindu Law is of course admitted for both the parties that such adoptions are not prohibited by law among the sudras.
10th issue: This issue relates to the question of the custom among Brahmins of adopting a daughter's son or a sister's son set up by the defendants. The defendant contention is that the custom prevail generally throughout the Madras Presidency as in several other parts of India. For the plaintiff it is, on the other hand, asserted that, though the custom obtains among Brahmins in the southern districts of this Presidency, it is not in vogue in the Andhra or Telugu portion of the Presidency. The parties to the adoption in the present case are Niyogi Brahmins of the Godavari District in the Andhra country.
In reference to the question of the custom involved in the issue, the learned Vakil for the defence raises a preliminary point of law as affecting the burden of proof. His contention on the point is that, in the Full Bench case reported in Vayidinada v. Appu 9 M. 44 (F.B.) the custom of adopting a sister's son or a daughter son among Brahmins in southern India was recognised by the High Court as being a valid one, and that that decision must, in the usual course, govern the Brahmins in the whole of the Madras Presidency, including also those in the Andhra districts. The arguments in support of the contention are categorically set-forth in paragraphs 6 to 11 of the 2nd defendant's affidavit, Exhibit 146-L, and it is hardly necessary to reiterate them here. On the other hand, it is pointed out for the plaintiff that, though the issue and the finding in the 9 Madras case purport to have reference to the prevalence of the custom in Southern India, the case arose among the Brahmins of the Tanjore District, that the instances of custom adduced in the case were limited to the Tamil Districts of Tanjore, Trichinopoly Madura and Tinnevelly and that, though their Lordships in the course of the judgment incidentally adverted to an instance among the Telugu Brahmins of Madras and to Strange's Hindu Law in reference to a case from the Cuddapah District, there are indications in the judgment itself that the actual finding related in particular to the southern Districts in the Presidency. In support of this contention, reference is made in particular to the observations of their Lordships at page 53 of the report, where they expressed themselves as follows:
We are satisfied that the practice of making such adoptions have prevailed among Brahmins in what are now the southern districts of this Presidency from time immemorial,
The learned Pleader for the plaintiff has also referred to Bhattacharya's Hindu Law, 3rd Edition, page 75, Narasammal v. Balaramacharlu 1 M.H.C.R. 420; Ganga Sahai v. Lekhraj Singh 9 A. 253 and Ganapati Aiyer's Hindu Law, pages 55 and 56, where the Andhra country or Telingana is recognised as a distinct unit of territory apart from the Dravida proper or Tamil country, though both of them, for purposes of general law, come under the main Dravida classification, in which are comprised Andhra, Carnataka, Ghurjhra, Dravida (Tamil) and Maharashtra as Sub-classifications. The Pleader also refers to the ruling in Chain Sukh Ram v. Parbati 14 A. 53 where the ruling in Vayidinada v. Appu 9 M. 44 (F.B.) has been understood as recognising the custom only among Brahmins in the southern districts of this Presidency, i.e., Tanjore, Trichinopoly and Tinnevelly. Southern India, as generally understood, includes not only the Madras Presidency, but also Hyderabad, Mysore and part of the Bombay Presidency, south of the line joining Cuttack with the Gulf of Cambay; and it could not possibly be that their Lordships in the 9 Madras case intended to find the existence of the custom in all said countries. In the course of the report, their Lordships observe as follows at page 50 in reference to a case from the Cuddapah District cited in Strange's Hindu Law:
The case was, it is true, one from the more northern part of the Presidency. But the learned Judge in his remarks speaks of the custom as prevalent generally.
This reference to Cuddapah as the more northern part of the Presidency and the doubt expressed by their Lordships in a way as to the importance of the case on that ground, also seems to afford some indication that the expression "Southern India" may have been used by their Lordships in the ruling in its restricted sense as applying to the southern part of this Presidency, i.e., the portion south of Madras (city). It cannot, of course, be seriously disputed that, for purposes of general law, there are only two main recognised schools, the Benares or Mitakshara School and the Bengal or Daya Bhaga School; but it cannot, I think, be on that ground contended that the customary law obtaining in the different territories comprised in a particular school must always be uniform and identical. It is also true that in the 9 Madras case their Lordships did not confine the scope of their enquiry to the Tamil Districts alone, but proceeded on broader lines; but it does not appear that their Lordships intended to find the existence of the specific custom among Brahmins of the Andhra District in particular, though Mayne, and some other authors on Hindu Law, seem to have understood the ruling as applicable to Southern India in general.
I, therefore, hold that the burden of proof as to the custom has been correctly set forth in the issue. Further, both the parties having actually adduced all available evidence on the question raised, the discussion under notice must be said to be of purely academic importance at this stage.
Then, in reference to the law as to the essentials of a valid custom and the sort of evidence that is necessary in proof thereof, their Lordships of the Privy Council ruled in the case Ramnad case Collector of Madura v. Moottoo Ramalinga Sathpathy 12 M.I.A. 397 1 that under the Hindu system of law dear proof of usage will outweigh the written text of the law. In the cases in Sivanananja Perumal v. Muttu Ramalinga Sethurayar 3M.H.C.R. 75 it was laid down as follows:
What the law requires before an alleged custom can receive the recognition of the Court, and so acquire legal force, is satisfactory proof of usage so long and invariably acted on in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, or district of country; and the course of practice upon which the custom rests must not be left in doubt, but be proved with certainty.
In the case in Gopalayyan v. Raghupatiaypan 7 11. H.C.R. 250 , which related to the adoption of a sister's son, it was ruled as follows:
The evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with law and this conviction must be inferred from the evidence.
Evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of Courts, or even of panchayats upholding such acts, the statements of experienced and competent persons of their belief that such acts were legal and valid will all be admissible, but it is obvious that,...evidence of this kind will be of little weight if unsupported by actual examples of the usage asserted.
Again, in Eranjoli Illath Vnhnu Nambutdri v. Eranjoli Illath Krishnan Nambudri 7 M. 3, which related to the adoption of a sister's son among the Nambudri Brahmins of the west coast, it is stated thus:
At the same time such a usage as is asserted must be proved by clear and unambiguous evidence; and it must be shown that it is exercised in pursuance of a custom understood to have the force of law and not to be a merely repeated violation of law.
In the Full Bench case in Vayidinada v. Appu 9 M. 44 (F.B.) their Lordships adhere to the rule in Sivanananja Perumal v. Muttu Ramalinga Sethurayar 3M.H.C.R. 75 and Eranjoli Illath Vishnu Nambudri v. Eranjali Illath Krishnan Nambudri 7 M. 3 and refer to the ruling of the Privy Council in Ramalakshmi Ammal v. Perumal Sethurayar 14 M.I.A. 570 , where it was decided that it is the essence of special usages modifying the law that they should be ancient and invariable, and it is further essential that they should be established by clear and unambiguous evidence. [See pages 45 and 46 of the report]. In reference to the case in Gopalayyan v. Raghupatiayyan 7 11. H.C.R. 250 , in the course of which it was said that the Court was not prepared to recognise the existence of any customary law in the case of Brahmins of which no trace appears in any written authority of the place to which they belong, their lordships of the Full Bench in the 9 Madras case observe as follows, at page 45:
All that the Court intended by the observations, from which this inference is drawn, was that strong proof of usage must be produced to establish a customary law at variance with the law declared in written treatises.
In Mirabivi v. Veloyanna 8 M. 461, their Lordships of the Madras High Court, in distinguishing a practice from a custom, remark that, though a practice might be more or less common, it does not become a custom unless it was consciously accepted as having the force of law.
In reference to the inter-relation between a custom and a rule of law, Mayne in his learned work on Hindu Law, 8th Edition, observes thus, at pages 56 and 57:
The next question is as to the validity of customs differing from the general Hindu Law, when practised by persons who admit that they are subject to that law. According to the view of customary law taken by Mr. Austin, a custom can never be considered binding until it has become a law by some Act, legislative or judicial of the sovereign power. Language pointing to the same view is to be found in one judgment of the Madras High
Court. But such a view cannot now be sustained. It is open to the obvious objection that, in the absence of legislation, no custom could ever be judicially recognized for the first time. A decision in its favour would assume that it was already binding. The sounder view appears to be that law and usage act, and re act, upon each other. A belief in the propriety, or the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it and a uniformity of behaviour in following a particular course of conduct produces a belief that it is imperative or proper, to do so. When, from either cause, or from both causes, a uniform and persistent usage has moulded the life, and regulated the dealings, of a particular class of the community, it becomes a custom, which is a part of their personal law. Such a custom deserves to be recognised and enforced by the Courts, unless it is injurious to the public interests or is in conflict with any express law of the ruling power.
To summarise the foregoing, a custom, before it can be recognised by the Court as valid, must have these essentials:
(a) It must be ancient and immemorial.
(b) It must be uniform and continuous.
(c) It must be shown to have, by common consent, been submitted to as the established governing rule of the particular family or community: or that the persons following it were convinced that they were acting in accordance with law; or that the custom was understood to have the force of law, but not (understood) to be merely repeated violation of the law. Or, in the words of Mayne, who sums up the'' whole matter, there must be a belief in the propriety or imperative nature of the particular course of conduct culminating in a custom.
(d) The custom must be made out by dear and unambiguous evidence.
(e) It should not be immoral or opposed to public policy.
While at this stage, it will be convenient to advert briefly to the authorities as to the prevalence of the alleged custom in other parts of this Presidency and elsewhere.
In the case in Vaayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427, already cited, the custom of adopting a daughter's or a sister's son among Brahmins has been upheld at least in reference to the Southern or Tamil Districts of the Presidency. And, following that ease, the adoption of a brother's daughter's son by custom was upheld in Appayya Bhattar v. Vengu Bhattar 15 M.L.J. 211. In the Full Bench case in Eranjoli Illath Vishnu, Nambudri v. Eranjoli Illath Krishnan Nambudri 7 M. 3 , the validity of a custom of adopting a sister's son among the Nambudri Brahmins of Malabar was recognised. A similar custom has been judicially recognised among the Bohra Brahmins of the northern districts of the North-Western Provinces in Chain Sukh Ram v. Parbati 14 A. 53 . In Pondicherry a man may adopt his daughter's or sister's son or any one of his wife's relations, though he may not adopt his own brother (Mayne's Hindu Law, 175). Strange in his Manual of Hindu Law, at page 22, Rule 88, states that the custom of making such adoption (of a daughter's or sister's son) even without emergency prevails in the Presidency of Madras, the opinion being based on the proceedings of the Sudder Court, dated 4th and 25th June 1836, though in an earlier edition of his book he seems to have thought the custom did not prevail in the northern country (See Exhibit KK 26). Their Lordships of the Madras High Court in Vayidinada v. Appu 9 M. 44 (F.B.) also refer to another case in Strange's Hindu Law, Appendix II, page 100, in which, in the year 1806, it was said that "in practise the adoption of a sister's son by persons of all castes is not uncommon." It is in reference to that case that their Lordships said it was from Cuddapah. In the course of the ruling, their Lordships also refer to the unreported case of Inguva Brahmani v. Venkatalakshmi Ammal between Telugu Brahmins (as the name of the parties indicate) of Madras (Town) on the Original Side of the High Court, in which the adoption by a Brahmin of a sister's son was upheld. In that case, which was of 1859, evidence had also been given of the practice amongst Brahmins of making adoptions of daughter's and sister's sons and Pandits also were examined as witnesses (pages 50 and 51 of the report). At pages 52 and 53 of the report their Lordships advert to the practice of the adoption of daughter's sons in its relation to the affiliation of Putrika Putra (appointed daughter's son), recognised by Hindu Law, in these terms:
The practice of making an appointed daughter whose son, if she had one, became the son of the father making the appointed daughter, if he had no male issue, was a mode of affiliation prevalent from the earliest time, even before the widow and daughter had a place assigned to them by the Mitakshara in the line of heirs.... Whatever doubt we may have as to how far the adoption of a daughter's son is inconsistent with the theory as to the invalidity of the adoption of a son within the prohibited degrees of connection, the usage may still be fairly referred to those texts which recognise the practice of (treating a daughter's son heir by appointment, the only difference being one of form and not of principle, the consent being given in the one case at the time of marriage, and in the other at the time of adoption
In support of that conclusion, their Lordships also quote with approval a passage from West and Buhler's Digest of Hindu Law, Volume II, pages 884 to 883. See also Minakshi v. Ramanada 11 M. 49 where the adoption of a daughter's son is justified on the old doctrine of Putrika
Putro. In the case in Narasammal v. Balaramacharlu 1 M.H.C.R. 420, which was from the Ganjam District, the adoption of a sister's son was held to be invalid on the opinion of a Pandit of the Northern Division. In that case, no custom was pleaded by the parties and it was in that case that the High Court ruled that no custom, how long so ever continued, which has never been judicially recognised, can be permitted to prevail against distinct authority (Hindu Law Texts), an opinion which has since been held to be erroneous.
It will thus be seen that the custom as to the adoption of a daughter's son is traceable in its origin to the old Hindu Law itself, which recognised the affiliation of an appointed daughter's son though now obsolete. It cannot, therefore, be seriously doubted that the custom, where it is found to exist, is referable to a legitimate source, and the authorities cited above establish the existence of the custom not only in the Southern Districts in this Presidency but also in some of the Andhra tracts like Cuddapah and Madras Town, and generally in other parts of India also.
Then, coming to the question of the existence of the alleged custom in the Andhra or Telugu portion of this Presidency in particular, the evidence in the case being of a voluminous character, both the parties have for facility of reference, been permitted to put in printed statements prepared on the basis of the oral and documentary evidence bearing on the point. The defendants'' statement, which sets forth 65 instances of adoption relied on for them is marked as "Statement A" and the plaintiff's statement, which analyses the oral and documentary evidence on his side as "Statement B." The instances relied on by the defendants will first be taken up seriatim, and then reference will be made to the rebutting evidence adduced by the plaintiff.
[The Court here discussed and considered the effect of 65 specific instances of adoption of daughter's and sister's sons,]
With these remarks, I hold that the custom of adopting a daughter's son or sister's son prevails generally among the Uriya Brahmins of the Ganjam District and that instances Nos. 44 to 65 adduced by the plaintiff cannot be otherwise than true.
In addition to the aforesaid 65 instances of specific cases of adoption, reliance is placed for 2nd defendant also on two Wills Exhibits 61 and 126 of 1st February 1898 and 24th August 1895, under which one K. Papayya and G. Narasimharao, respectively, gave authority to their wives to adopt a daughter's son. It does not appear from the evidence if the power was exercised by either of the women; but the documents are relied on as indicating the consciousness and conviction of the testators as to the validity of such adoptions.
For a similar purpose, reliance is placed for the defence also on the revised decree of the Provincial Court of Appeal of the Northern Division in Original Suit No. 47 of 1834 filed as Exhibit 131. Somappa, the plaintiff in that case, was the father-in-law of the 1st defendant herein (see the pedigree Exhibit I). That suit having been brought by him for possession of the plaint estate, his paternal uncles Wumapati, the first defendant therein, raised the plea that the plaintiff had been given away in adoption to his maternal grandmother while an infant. (See page 640 of the printed record). The adoption set up for Wumapati was no doubt not true; but there remains the fast that such a plea was set up so long ago as 1834 in all seriousness as a tenable one, provided it could be established as a fact. It is contended for the defence, and I think not without some reason, that the fact of such a plea being set up indicates the social consciousness of the community at the time as to such adoptions.
Lastly, a judgment of the local Additional Sub-Court in Original Suit No. 40 of 1902 (Exhibit 123) is relied on for the defence, in which the adoption of a daughter's son among the Vaisyas of Rajahmundry was recognised on the authority of Vayidinada v. Appu 9 M. 44 (F.B.) in the absence of any evidence adduced by either party.
Besides speaking to the specific instances of adoption of a daughter's son or brother's daughter's son or a sister's son, many of the defence witnesses also refer in their depositions to other instances within their knowledge and also to the existence of a custom in regard to such adoptions in general. Their evidence, as a whole, indicates to their belief in the validity of such adoptions on the basis of custom.
Then, coming to the rebutting evidence adduced on the plaintiff's behalf, his statement B analyses the evidence under four classes. Class I consists of the evidence of the plaintiff's witnesses that speak to cases where a person, having daughter's sons eligible for adoption, adopted a brother's son or a gnati or other sapinda, giving some property to the daughter's sons. The witnesses Nos. 2, 5,15,18,20,21,24, 37, 38 and 41, speak to cases of adoption of brothers'' sons, Nos. 1,9,16, 19,22,29, 31, 32, 33, 34 and 36 of adoptions of sagotras, and the others of adoption of gnatis. Class II consists of cases where a person, having daughter's sons whom he could have adopted, distributed the property among daughter's sons without adopting any one. Class III Consists of cases in which a person appointed one of the daughter's sons to perform his obsequies, etc., giving him a large portion of his property and giving smaller portions to the other daughter's sons. Some of the cases in the said three classes are also supported by documents in reference to the distribution of property. Under class IV is set forth the evidence of plaintiffs'' witnesses, some of whom are also Pandits, who state that they are not aware of the custom and that the adoption of a daughter's son or sister's son is prohibited by the Sastras. Some of them also say that they intended to adopt daughter's sons, but that they adopted others among their sagotras or gnatis, etc., on being told that such adoptions were prohibited by the Sastras, and also on the ground that they were not satisfied with the existence of such a custom as would warrant an adoption of the kind (plaintiff witness No. 4).
For the plaintiff, reliance is also placed on a case that came up before the District Munsif's Court, Narasapur, in Original Suit No. 102 of 1868, in which the adoption of a sister's son was held to be invalid. In that case, the adoption itself was held to be true, though made without the authority of the husband. The decision in that case proceeded on the general law as laid down in Narasammal v. Balaramacharlu 1 M.H.C.R. 420 and Jivani Bhai v. Javu Bhai 2 M.H.C.P. 462. No custom was pleaded in that case, nor was there any inquiry about the same.
In reference to the evidence of plaintiff's witness under classes I to III of his Statement B, it may be observed that the custom relied on for the defence is not an imperative or obligatory custom binding on the community in general as in the case of inheritance or succession, but only an optional one limited in its operation. It is not the defendants'' case that every childless man having a daughter's son when making an adoption is bound by the custom to adopt him alone in preference to another, What is claimed for them is only that the custom or usage permits the adoption of a daughter's son also at the choice and selection of the adopter,
As to the choice of a boy for adoption according to Sastras and how it has been varied gradually Mr. Mayna in his Hindu Law, observes as follows at page 171:
Hence, in the first place the nearest male sapinda should be selected, if suitable in other respects, and, if possible, a brother's son as he was already, in contemplation of law, a son to his uncle. If no such near sapinda be available, then one who is more remote; or in default of such, then one who was of a family which followed the same spiritual guide, or, in the case of Sudras, any member of the caste. Probably, this rule was strengthened by the feeling that it was unjust to the members of the family to introduce a stranger if a near relative was available. Originally, it seems to have been a precept. Subsequently, it sunk to a mere recommendation. It is now settled that the adoption of a stranger is valid even though relatives otherwise suitable are in existence.
The above being the law as to the selection of a boy in adopter, a childless Hindu may choose to follow the strict letter of the law by adopting a sapinda or sagotra, in the order of preference, or a stranger, or may adopt a daughter's son according to accepted custom, if one should be in vogue, Adoption itself being optional, he may not for reasons of his own, adopt anybody at all, but make an arrangement for distribution of his property at his pleasure. That being so, the instances included in classes I to III of plaintiff's statement do not seem to be of any real importance as disproving the custom relied on for the defence.
As to the evidence of plaintiff's witnesses under class IV, the persons concerned are apparently followers of the orthodox view, who prefer to act in accordance with the strict letter of the Sastras. The custom relied on in this case being, as already stated, of a restrictive operation it may be that the plaintiff witnesses and other persons in the community for the matter of that, may not be directly aware of the existence of the custom, having apparently had no occasion to have knowledge thereof. In the case of a custom, what the law requires seems to be not that each and every member of the community should have direct knowledge thereof which cannot be expected in the ordinary course of human conduct especially in regard to a permissive custom, but only that the persons following it should act, under the conviction that they were acting in accordance with a custom understood to have the force of law and (understood) not to be merely a repeated violation of law, and that the community coming into contact with such acts should acquiesce therein. According to the case in Gopalayyan v. Raghupatiayyan 7 11. H.C.R. 250, already cited, such a conviction or consciousness has to be inferred from the acts of the kind, acquiescence in those acts, their publicity and so on. The acquiescence in such acts would, in general, be, on the part of the members of the community who get cognizance thereof by direct knowledge or information and also on the part of the Government, etc. See Chain Sukh Ram v. Parbati 14 A. 53 . The case in Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy 10 B. 528 , related to an obligatory custom of general application, and is thus dearly distinguishable.
The affiliation of a Putrika Putra or appointed daughter's son is as old as Hindu Law, and Recording to the Vayidinaia v. Appu 9 M. 44 (F.B.), the practice of the adoption of a daughter's son is referable to the old doctrine of Putrika Putra, though now obsolete. The custom of such adoptions has been in vogue among Brahmins in several parts of this Presidency and elsewhere, as stated already in paragraph 10 above; and if Brahmins in the Andhra Districts of the Presidency in practice make such adoptions it cannot be deemed that they did so without consciousness of the old Hindu Law as to Putrika Putra or of the custom in vogue is different parts of the Presidency. No Brahmin with any sense can be expected to go through such a serious act as an adoption for the mere fun of