POPURI MURAHARI BRAHMA SASTRI ALIAS SREERAMA SARMA BEING MINOR BY THE ALLEGED ADOPTIVE MOTHER AND GUARDIAN VENKATASUBBAMMA Vs. CHILUKURI SUMITRAMMA

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. The appeal arises out of a suit instituted by the plaintiff for a declaration that the alleged adoption of the 1st defendant by the 2nd defendant is not true or valid.

(2.) One Popoori Ramakrishnayya died in or about 1900. The plaintiff is his daughter by his first wife. After the death of the plaintiff's mother, Ramakrishnayya married the 2nd defendant. At his death she had not attained puberty. Defendants 3 and 4 are the divided brothers of the deceased Ramakrishnayya and his nearest gnatis. 1 defendant is the son of the 4th defendant. On 10 July, 1923, the 2nd defendant sent a registered post card, Ex. III, to the 3 defendant requesting him to give her written authority to adopt. This letter was refused by him. On 26 August, 1923, she sent another registered post card Ex. IV to the 3 defendant making the same request. This was also refused. On 20 September, 1923, the registered post card Ex. V was sent by her pleader making the same request. This was also refused by the 3 defendant. On the same date as Ex. III the 2nd defendant sent Ex. VII to the 4 defendant asking his permission to adopt. On the 25 of November, 1923, he gave the required consent for the adoption by executing Ex. II, the deed of authority. On 17 April, 1924, the 2nd defendant adopted the 1 defendant and executed in his favour the adoption deed Ex. I. This was attested, amongst others, by Popoori Sastrulu and Popoori Gangadhara Sastri, two reversioners of the deceased Ramakrisbnayya. The evidence discloses that two other reversioners of Ramakrishnayya--Popoori Sambayya and Popoori Ramatharakam--were also in existence at that time. The plaintiff denied the factum of the adoption and contended that even if true it was invalid. Holding that the adoption was proved, the learned Judge held that it was invalid for two reasons: (1) that the plaintiff who was the nearest reversioner was not consulted, and (2) that even if plaintiff's consent was not necessary, when the 3 defendant had not given his consent the adoption should not have been made on the sole consent of the 4 defendant without convening a meeting of the other kinsmen and taking their consent. The second ground is more elaborately stated in para. 27 of the judgment as follows: The second reason for holding that 1 defendant's adoption is invalid is that, even assuming that plaintiff was not one of those to be consulted, the 2nd defendant should have convened a gathering of kinsmen when she found that of the two nearest agnates one of them only was prepared to give his consent. As remarked in Anne Brahmctyya V/s. Chelasami Ratiayya 1924 M.W.N. 844, a majority of the kinsmen must consent and one of two cannot form majority. If 3 defendant capriciously withheld his consent, the 2nd defendant should have taken the consent of the next reversioners who are said to be one Popoori Sambayya and one Popoori Ramatharakam.

(3.) In appeal Mr. Varadachari argues (1) that in law the consent of the plaintiff is not necessary for the widow to make a valid adoption, and (2) that the evidence, shows that before making the adoption she obtained the consent of a majority of the kinsmen or such consent of the kinsmen as is sufficient to show that her act of adoption was done in the proper and bona fide performance of a religious duty and neither capriciously nor from a corrupt motive--see Collector of Madura V/s. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397--which he contends is all that is required in law to make the adoption valid in the absence of the husband's authority.. In addition to the grounds found in his favour by the Lower Court, Mr. Somasundaram on behalf of the 1 respondent urged before us that the authority given to the widow by the 4 defendant is too general to be valid and that the evidence shows that the consent was procured by corrupt motives. The latter ground though taken was not pressed as the evidence in support of it was stated to be weak, and therefore need not be dealt with. The ground that the authority is too general is also unsubstantial. In Suryanarayana V/s. Venkataramana (1903) I.L.R. 26 Mad. 681, the decision referred to in support of this contention, the assent of the sapinda obtained by the widow was for the adoption of any boy at anytime and this was not acted upon for 9 years. The assent given by the 4th defendant by Ex. II is not to adopt any boy whom the widow may like but " any boy whom you may like either from among agnates or from sagotrajas (the italics are ours) for performance of religious rites as ordained by Sastras...". The class from which the adoption is to be made is clearly indicated and is not left as vague and as indefinite as in Suryanarayana V/s. Venkataramana (1903) I.L.R. 26 Mad. 681. It cannot also be said that after obtaining the consent there was any delay in making the adoption. No doubt the adoption was about 24 years after the death of the husband, but it must be remembered that at the time of his death the 2nd defendant was only about 11 years old. If the adoption is otherwise valid it cannot be said that it must be held to be invalid solely on the ground that it was not made by her at a date earlier than 1924. The only substantial grounds for consideration therefore are the grounds urged in the Lower Court and we will deal with them in order..