KALAGA ANNAPURNAMMA, MINOR, BY FATHER AND NEXT FRIEND BHAMIDIPATI RAMALINGASWAMI GARU Vs. KALAGA APPAYYA SASTRI

JUDGEMENT

(1.) The second question referred to us for decision is: Whether the assent of a son to an adoption by his mother is sufficient assent under Hindu Law to validate the adoption where there is no change in the circumstances and there are no other grounds for the next presumptive reversioner to object to the adoption when actually made.

(2.) In this Presidency the law is well settled that a Hindu widow, not having her husband's permission may, if duly authorized by his kindred, adopt a son to him (see Collector of Madura V/s. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397). It is also settled that the condition regarding the consent of the husband's kindred is sufficiently satisfied if the consent of the nearest sapindas--even if there be only one such--be obtained (Subrahmanyam V/s. Venkayima (1903) I.L.R. 26 M. 627 at 635 : 13 M.L.J. 239 and Veerabasavaraju V/s. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265 : I.L.R. 41 M. 998 : 36 M.L.J. 40 (P.C.)) they being by virtue of the relationship the most competent advisers of the widow and the proper judges of the propriety of her act in making the adoption. As observed in the referring order, under the Hindu Law, the mother is under the protection of the son, who is the nearest sapinda after the husband's death. It follows that prima facie his assent is sufficient to validate an adoption by his mother. According to the theory underlying the law of adoption this assent of the son can be acted upon only after his death. Does the fact that the son is not alive when the adoption is actually made render his consent ineffectual and in consequence, the adoption invalid?

(3.) It is argued on one side that the son's consent is valid as he is the natural guardian and protector of the widowed mother and is the person most interested in the main purposes which constitute the necessity for the adoption, namely, the performance of his sradh and the perpetuation of his family. On the other side it is contended that the consent contemplated is that of the sapindas whose presumptive or reversionary rights would be defeated by the adoption and not of the deceased son as regards whom no question of endangering proprietary interests could possibly arise. In Collector of Madura V/s. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 wherein the validity of a widow's adoption with the consent of her husband's kindred was authoritatively laid down, their Lordships of the Privy Council observed that: the assent of 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. That the rights of property should also be taken into account was for the first time expressed in Sri Virada Pratapa Raghunada Deo V/s. Sri Brozo Kishoro Patta Deo (1876) I.L.R. 1 M. 69 : L.R. 3 I.A. 154 (P.C.). At page 83 the Privy Council said: It may be the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there arc grave social objections to making the succession of property, and it may be in the case of collateral succession, as in the present instance, the rights of parties in actual possession, dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too, apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Court to keep the power strictly within the limits which the law has assigned to it.