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(1.) VENKATA Reddi died in 1877 leaving at his death no male coparceners but leaving his wife Mangamma and his daughter, the plaintiff, him surviving. Pemmi Reddi, the natural son of Nallappa, but the adopted son of another VENKATA Reddi seems to have been nearest sapinda. VENKATA Reddi also had a sister who married the 2nd defendant, and they had a daughter (wife of the 4 defendant) who is the mother of the principal defendant. It is against this defendant, alleged to have been adopted by Mangamma, that the plaintiff makes her claim, Mangamma having died in 1896. The adoption is founded on an authority alleged to have been given to Mangamma by her husband just before his death which occurred suddenly and also on the assent admittedly given by the abovementioned Pemmi Reddi. The District Judge has found that the giving and acceptance of the child which constitute an adoption are not proved to have taken place and that no authority was in fact given by Mangamma's husband. As to the latter finding Sir V. Bhashyam Aiyangar who appeared for the appellant admitted that he could not reasonably question it. But he contended that the District Judge was wrong in holding that no adoption was effected, and this contention, we think, was made good. Seeing that it is admitted even by the plaintiff's witnesses that the clear intention of Mangamma was to effect an adoption and that documents were executed and other things were done on the footing of an actual adoption, we think it is most improbable that the simple acts of giving and receiving the child should have been omitted. Assuming then that there was an adoption and that it was made without the authority of Mangamma's husband, but with the consent of his nearest sapinda, we have to see whether that assent was a valid assent. It is impugned on two grounds. First it is said that Pemmi Reddi did not exercise any discretion, but acted merely in accordance with the supposed wishes of the deceased VENKATA Reddi. If that were so, it is clear that the assent would not be a valid assent. Pommi Reddi was not called as a witness and, therefore, we have no direct means of knowing what facts were present to his mind when he gave his consent. The consent was given in writing dated the 4 January 1894. Inasmuch as the document recites the alleged permission as having been given by the husband of Mangamma in the prosence of Pemmi Reddi and others, it would be difficult, if there was nothing but the document to consider, to say that Pemmi Reddi was not influenced by the circumstance that authority had been given or had been asserted to have been given. It is true that the document is so worded as to suggest that the consent was given independently of the alleged authority. Still there is the assertion of the husband's authority, and when the sapinda does not come forward to say he acted without regard to that assertion, we doubt whether the assertion can be considered to meet the requirements of Hindu law. But it is said that Pemmi Reddi could not have been misled by the assertion since it was notorious that no authority had really been given. This contention is in flat contradiction to the case made by the appellants in the court below and, therefore, naturally there is no evidence to support it. The circumstances are strong to show that no authority was given, but it is quite another thing to say that the individual sapinda Pemmi Reddi knew that the widow had not been authorized to adopt. There is, however, another ground on which the assent is impeached and with regard to it we think there is no room for doubt. On the day before the deed of consent was executed, Mangamma executed in Pemmi's favour a conveyance of certain lands forming part of her husband's estate. The District Judge has found that the consideration for this sale expressed in the document is fictitious. That finding is not seriously questioned. In the absence of any explanation by Pemmi Reddi the inference that the real consideration for the conveyance was his assent to the adoption is in our opinion irresistible. There is in addition the evidence of the 16 witness for the plaintiff proving that Pemmi Reddi's consent was bought by a present of lands made at the expense of the adopted boy. The language of Exhibit 1, the deed of adoption, shows that it was supposed that the rights of the adopted son might be defeated by alienations previously made by the widow. Sir V. Bhashyam Aiyangar declined to argue that the assent was a valid assent if it was purchased in the way described. And it is clear upon the authorities that the point is not arguable see The Collector of Madura V/s. Mootoo Ramalinga Setupati 12 M.I.A. 441, Vellanki VENKATA Krishna Rao V/s. VENKATArama Lakshmi I.L.R., 1 M. 174, Ganesa Ratnamaiyar V/s. Gopala Ratnamaiyar Ib. 2 M. 281. For this reason we are of opinion that the adoption was invalid and, therefore, the appeal must be dismissed with costs.;
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