SURE SUBBA RAO AND ANR. Vs. SURE VENKATA SATYANARAYANA AND ANR.
LAWS(MAD)-1952-12-20
HIGH COURT OF MADRAS
Decided on December 10,1952

Sure Subba Rao And Anr. Appellant
VERSUS
Sure Venkata Satyanarayana And Anr. Respondents

JUDGEMENT

Subba Rao, J. - (1.) THIS appeal raises the question of the factum and validity of the adoption of the first defendant by the second defendant. The parties are Valsyas by caste. In or about 1912 Venkayya, the last male holder died possessed of a large estate more particularly described in schedules A, B and C appended to the plaint. As he had no issue, his wife Ademma, the second defendant inherited his properties. On 10 -2 -1947 she is said to have taken the first defendant in adoption to her deceased husband. The plaintiff who is the nearest 'reversioner along with the third defendant, being Venkayya's brother's son, filed O.S. No. 90 of 1947 on the file of the Court of the Subordinate Judge, Guntur, for a declaration that the adoption of the first defendant by the second defendant was not true, valid and binding on the reversioners to the estate of Venkayya. He questioned the factum of adoption and pleaded that even if it had taken place, it was invalid on the ground that the consent of the next reversioners was not taken. The first defendant is the alleged adopted son. The second defendant is Ademma, the widow of Venkayya. The third defendant is the son of Venkayya's brother, Guruvayya. The third defendant supported the plaintiff in so far as he questioned the factum and validity of the adoption. Defendants 1 and 2 supported the adopting. They also questioned the correctness of the schedules attached to the plaint. The following issues were framed: " 1. Is the adoption of the first defendant by the second defendant true and valid? 2. ARE the stipulations in the compromise in O.S. No. 30 of 1917 under which second defendant could adopt not valid and binding on second defendant? Even so is she bound by them after the death of the third defendant's lather; if not is the refusal by the plaintiff and third defendant to consent to adoption by her proper? 3. ARE the schedules correct? 4.TO what relief is plaintiff entitled? The learned Subordinate Judge found on issues 1 to 3 in favour of defendants 1 and 2. In the result he dismissed the suit with costs. The plaintiff and the third defendant have preferred the aforesaid appeal.
(2.) The first question in the appeal is whether the alleged adoption was true. (His Lordship considered the evidence on the point and concluded:) We therefore hold that the second defendant took the first defendant in adoption on 10 -2 -1947 after going through the necessary formalities.
(3.) The next question is whether the adoption, oven if true, is valid. Learned counsel for the appellants contended that the adoption was invalid as the consent of the nearest 'sapindas' - - the plaintiff and the third defendant - - was not taken. He would also argue that even if for one reason or other they could be ignored the consent given by the other 'sapindas' would not be legal consent within the meaning of the decided cases. At this stage it may be convenient to notice the law on the subject as it would facilitate the application of accepted principles to the facts of this case. The necessity for the consent of the 'sapindas' in the case of an adoption by a widow whose husband died divided was laid down by the Judicial Committee in the Rarnnad case - - 'Collector of Madura v. Moottoo Ramalinga',, 12 Moo Ind App 397 (A), as follows: "In such a case, therefore, their Lordships think, that the consent of the father -in -law, to whom the law points as the natural guardian and venerable protector of the widow, would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father -in -law is in existence. Every such case must depend upon the circumstances of the family. All that can be said is, that there should be such evidence of the assent of Kinsmen as suffices to show, that the act is done by the widow in the proper and 'bona fide' performance of a religious duty, and neither capriciously nor from a corrupt motive." Their Lordships stated the reason for the rule in the following terms: "The assent of the kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption." It will therefore be seen that the reason for the rule is not the possible deprivation of the proprietary interests of the reversioner but the state of perpetual tutelage of women under Hindu law. The consent of the kinsmen was considered to be a sufficient guarantee against any capricious action on the part of the widow in taking a boy in adoption. In - - 'Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi',, 1 Mad 174 (B), the Judicial Committee proceeded to elaborate on the scope of the consent of 'sapindas'. Their Lordships observed: "All that which this Committee in the former case - -, 12 Moo Ind App 397 (A)', intended to lay down was, that there would be such proof of assent on the part of the 'sapindas' as should be sufficient to support the inference that the adoption was made by the widow, not from capricious or corrupt motives, or in order to defeat the interest of this or that 'sapindas' , but upon a fair consideration, by what may be called a family council, of the expediency of substituting an heir by adoption to the deceased husband.";


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