VASI REDDI VENKAYYA Vs. GOPU SREERAMULU

JUDGEMENT

(1.) The only question involved in this appeal is whether an adoption by a Hindu widow of a son to her deceased husband is valid when the authority to adopt has been given by the nearest sapinda and expressed in general terms. In other words, must the sapinda consent to the adoption of a particular person in order to make the adoption valid? The first plaintiff in the suit out of which this appeal arises was adopted on the 7 May, 1920, by Venkamma, the widow of one Sivaramayya. No authority had been given by Sivaramayya to his widow, but she informed the nearest sapinda of her intention to adopt and sought his consent. The sapinda gave his consent in writing, the operative portion of the document being in these words: You shall therefore, whenever you like, bring and adopt duly a boy whom you like according to Shastras. This is the deed of authority to adopt executed and delivered by me wholeheartedly. The first plaintiff sued as the adopted son and asked for a declaration that certain alienations were not binding on him. The second plaintiff, who is the appellant, claimed a half share in the properties in suit by reason of a deed of assignment executed in his favour by the first plaintiff. The defendants challenged the validity of? the first plaintiff's adoption on the ground that the sapinda's consent was invalid because it was couched in general terms and this plea was accepted by the trial Judge, the District Munsif of Bezwada, and by the Subordinate Judge of Bezwada on appeal. The result was that the suit was dismissed. The appellant then appealed to this Court and the appeal has been placed before a Full Bench because certain judgments of this Court which have bearing are in conflict.

(2.) In Kamesam V/s. Butchammd (1914) 1 L.W. 511, Wallis and Sadasiva Aiyar JJ., held that an authority to adopt given by sapindas was not invalid because it was expressed generally and empowered the widow "to adopt any boy at any time she liked". The words in quotation marks are from the judgment. The exact words of the authority given in that case are not quoted in the report, but we have examined the deed authorising the adoption and find that the second paragraph reads as follows: As your son Jogi Ramachandrudu died unmarried, and as you have asked me that permission should be granted for adopting for the increase and perpetuity of the family permission is granted through this approving your request. Therefore, this is the deed of permission executed heartily that adopting the boy you like whenever you like, the increase and perpetuity of the family should be accomplished. The Court had no hesitation in holding that a document so expressed conferred a valid authority on the widow. In disputing the correctness of this decision the contesting respondents rely on observations made in the judgments in Suryanarayana V/s. Venkaiaramana , Veera Basavaraju V/s. Balasurya Prosada Rao 1914 M.W.N. 502, and Anne Brahmayya V/s. Chelasami Rattayya (1924) 20 L.W. 503.

(3.) The first of these cases was decided by Subrahmania Aiyar and Davies, JJ. There the sapindas had signed a document assenting to the adoption by the widow of any boy at any time, but she did not make an adoption until nine years later and during the interval the circumstances had materially changed. It was not necessary for the purpose of deciding that case for the Court to express an opinion on whether a general power given to a widow to adopt was valid or whether the fact that the circumstances had materially changed in the course of the nine years made any difference, because the Court found that the widow had received authority from her deceased husband. The judgment in Suryanarayana v. Venkataramana , was considered by Wallis and Sadasiva Aiyar, JJ., in Kamesam v. Butchamma (1914) 1 L.W. 511. They did not think that Subrahmania Aiyar and Davies, JJ., intended to say that a general authority cannot be availed of by the widow when she adopts almost immediately after the authority has been given. The learned Judges who decided Suryanarayana V/s. Venkataramana1 may not have intended to say that a general authority to adopt is void in all cases, but their remarks were considered to amount to this by White, C.J., and Oldfield, J., in Veera Basavaraju V/s. Balasurya Prosada Rao 1914 M.W.N. 502, In that case White, C.J., and Oldfield, J., said: But on the evidence available and the terms of Ex. R-l, we must hold that it at the highest authorised the adoption of any boy at any time and therefore was useless, vide Suryanarayana V/s. Venkataramana , and that, as the learned District Judge opines, it expresses only a general willingness to consider the making of an adoption favourably, the necessary final consent, to a specific adoption being reserved, until details are available. It was not necessary for the decision of Veera Basavaraju V/s. Balasurya Prosada Rao 1914 M.W.N. 502, for the learned Judges to make these observations and therefore they must also be regarded as obiter, but at the same time they are in direct conflict with the decision in Kamesam V/s. Butchamma (1914) 1 L.W. 511. Anne Brahmayya V/s. Rattayyat (1924) 20 L.W. 503, was decided by Ramesam, J., who held that the sapinda must indicate the person to be adopted and the authority to adopt must be used within a short period.