VAJJULA ALIAS HANUMANTHAVAJJULA SURYANARAYANAMURTHY Vs. HANUMANTHAVAJJULA GOPALAKRISHNAMMA

JUDGEMENT

(1.) The respondents have not appeared to oppose this appeal but as the Court has decided to allow it the reasons must be stated. The suit out of which the appeal arises was filed by the appellant in the Court of the Subordinate Judge of Rajahmundry for a declaration that the adoption of the first respondent by the second respondent was invalid. The second respondent is the widow of one Jagappa, alias. Jagannatha Sastrulu, who died on the 11 December, 1868. The adoption took place on the 4 July, 1929, nearly 61 years after the death of the husband of the second respondent. The second respondent was a very young girl when her husband died and was still under the guardianship of her father. There were two defences set up. It was said that the appellant and other sapindas had given their consent to the adoption and that the widow was given power to adopt by a will executed by her deceased husband. The Subordinate Judge held that the appellant was the only living sapinda, that he had not given his consent, and that the alleged will was a forgery, but he dismissed the suit on the ground that the appellant had refused his consent from an improper motive.

(2.) That the consent had been refused was common ground, but the appellant was not asked why he had refused his consent and there is nothing in the evidence which indicates that he refused his consent improperly. The Subordinate Judge assumed that the appellant had refused his consent on the ground that his rights as a reversioner would come to an end if the widow adopted a son to her husband and considered that this would be an improper motive. The Subordinate Judge was not entitled to make this assumption. The burden was on the respondents to prove improper motive see Kristnayya V/s. Lakshtnipathi (1920) 39 M.L.J. 70 : L.R. 47 I.A. 99 : I.L.R. 43 Mad. 650 (P.C.), - and as the burden had not deen discharged the appellant was entitled to succeed.

(3.) Under the Mitakshara law as interpreted in this Province the widow cannot adopt a son to her husband unless she has received authority from him or has received the consent of her husband's sapindas. That the consent of the sapindas is necessary in the absence of direct authority from the husband is to be gathered from the decisions of the Privy Council in The Collector of Madura V/s. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397, Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) I.L.R. 1 Mad. 174 : L.R. 4 I.A. 1 (P.C.), Veerabasavaraju V/s. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 I.A. 265 : I.L.R. 41 Mad. 998 (P.C.), Kristnayya V/s. Lakshmipathi (1920) 39 M.L.J. 70 : L.R. 47 I.A. 99 : I.L.R. 43 Mad. 650 (P.C.), Sri Krishnayya Rao V/s. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388 (P.C.), and Balasubramanya Pandya Thalaivar v. Subbayya Thgvar . A Full Bench decision of this Court of which my learned brother and I were members had to consider the effect of these authorities in the recent case of Gundavarapu Seshamma V/s. Kornepati Venkata Narasimha Rao , and it was the|"e held that they had decided that in the absence of authority from her husband the widow could adopt only with the consent of the nearest agnates, unless consent was improperly withheld, in which case she might lawfully adopt with the consent of the next nearest agnates. If there were no agnates she must look for advice to the cognates, it having been definitely laid down by the Privy Council that she was not competent to decide on an adoption for herself.