GUNDAVARAPU SESHAMMA Vs. KORNEPATI VENKATA NARASIMHA RAO

JUDGEMENT

(1.) The question which the Court is called upon to decide in this appeal is whether an adoption by a Hindu widow is valid when the family is divided and she has obtained the consent of the nearest sagotra sapindas of her husband, but has not consulted a daughter's son, he being of age. In other words does the Hindu law demand that the daughter's son shall be consulted, if he is of age, before the widow can adopt, notwithstanding that the proposed adoption has received the approval of her husband's nearest agnates?

(2.) In this case one Kornepati Lakshminarayana died divided from his brothers. He was survived by his wife Subbamma and his two daughters, the appellant and one Rathamma, who is now dead. The appellant has four sons who have not been made parties to this litigation. Rathamma had two sons the fifth and sixth respondents. In the year 1916, about 40 years after her husband's death, Subbamma adopted a boy named Narasimha Rao, the son of the third respondent. Before the adoption took place Subbamma obtained the consent in writing of her husband's nearest agnates, the second, third and fourth respondents, who are the sons of her husband's brothers. The adopted boy died and Subbamma then adopted with the like consent the first respondent, the son of the second respondent. It is common ground that the adoption ceremony was duly performed and that the appellant's sons, all of whom were majors, were present. Subbamma died on the 23 April, 1930, and after her death the appellant instituted in the Court of the District Munsif of Guntur the suit out of which this appeal arises for a declaration that the adoption was invalid and for possession of her father's estate. Various pleas were raised, but for the purposes of the appeal it may be taken that her only ground for challenging the adoption was, that one of her sister's sons, the sixth respondent, who was a major at the time of the adoption, was not consulted and that he had not intimated his consent to the adoption taking place. Why the appellant did not join her sons as parties to the suit is explained by the fact that they were present at the adoption ceremony and she was unable to contend that they were not consenting parties. The position then is this. The nearest sagotra sapindas gave their express consent to the adoption, the appellant's own sons impliedly gave their consent, but the major son of the appellant's sister was not consulted and did not signify his acquiescence. The Court has been given to understand that the cither son of Rathamma was a minor at the time. The District Munsif held that the adoption was valid and on appeal the Subordinate Judge of Guntur concurred in his decision. The appellant then filed this second appeal which has been placed before a Full Bench for decision as there is a conflict of authority in this Court on the question whether it is necessary to consult a daughter's son when the widow of a member of a divided Hindu family adopts a son to her husband without authority to adopt having been given by her husband.

(3.) The position of a daughter's son under Hindu law is a special one. While he is not a sagotra sapinda, but a bandhu, he is given the right of succession to his maternal grandfather's estate after the death of his maternal grandmother and his mother when the maternal grandfather has left no son, grandson or great grandson through the male line. According to the Mitakshara law of succession the agnatic kindred are as a general rule preferred to all cognates, irrespective of proximity of relationship. In the absence of a direct descendant in the male line down to three degrees, the widow, however, inherits the estate, and after her, the daughter and the daughter's son. These three come in before all other agnates except the three descendants in the direct male line. The precedence of the widow is due to the theory that she is the surviving half of her deceased husband, and the daughter comes in next because she equally with the son proceeds from the limbs of the father. The special position of the daughter's son is based on ancient texts.