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TMI Blog1939 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 23rd 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on's son. 6. It is clear that the priority given to the widow, the daughter and the daughter's son over agnates not in the direct male line of descent can only be regarded as an exception to the general rule. 7. There is no textual authority bearing directly on the question raised in this appeal, at least none has been quoted to us, and in the course of the argument the Court has been given to understand that none exists. The question admittedly falls to be decided on the principles to be gathered from the decisions of the Privy Council relating to the widow's right to adopt under the Mitakshara law as applied in the Madras Presidency, but the question whether the daughter's son has the right to be consulted before the widow adopts a son to her deceased husband without authority from the husband has not been raised directly before the Judicial Committee. Four Division Benches of this Court have considered the judgments of the Privy Council in cases relating to the widow's right to adopt and there has been a marked divergence of opinion as to their effect in a case like the present one. In order that there may be some finality so far as this Court is concerned on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther-in-law, to whom the law points as the natural guardian and venerable protector of the widow, would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every such case must depend upon the circumstances of the family. All that can be said is, that there should be such evidence of the assent of kinsmen as suffices to show, that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive. 9. So far as the divided family is concerned it will be observed that the Board here held that: - (1) the assent of kinsmen is 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; (2) the consent of tie father-in-law, the venerable protector of the widow would be sufficient; (3) when the father-in-law is dead it is not easy to lay down an inflexible rule; every such case must depend upon the circumstances of the family, and there should be such evidence of the assent of kinsmen as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or from corrupt motives. 13. In Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi (1876) L.R. 4 I.A. 1 : I.L.R. 1 Mad. 174 , the Privy Council considered the passage in the Ramnad cases immediately following the statement that it was not easy to lay down an inflexible rule for the case in which no father-in-law was in existence and said: Their Lordships think it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow, and that all which this Committee in the former case intended to lay down was, that there should be such proof of assent on the part of the sapindas as should be sufficient to support the inference that the adoption was made by the widow, not from capricious or corrupt motives, or in order to defeat the interest of this or that sapinda, but upon a fair consideration, by what may be called a family council of the expediency of substituting an heir by adoption to the deceased husband. 14. There is no reason to suppose that the word family was here used in a sense different from the strict sense in which it was used in the passage which I have quoted from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the reversion. His authorization is, therefore, essentially requisite to the validity of an adoption by her to her husband. If there is no father the divided brothers take his place by virtue of the tie of blood as her husband's nearest sapindas; they become her natural guardians and protectors of her interests. They also have an interest in the protection of the inheritance. In the absence, then, of the father, the assent of the divided brothers is equally requisite for the validity of the widow's adoption. If a majority assent and one refuses, his objection may be discounted. But the absence of their consent, or in case there is only one, of his consent, cannot be made good by the authorization of distant relatives remotely connected whose interest in the well-being of the widow or the spiritual welfare of the deceased, or in the protection of the. estate, is of minute character, and whose assent is more likely to be influenced by improper motives. 16. We have here a reiteration of the principle stated in the Ramnad case (1868) 12 M.I.A. 397 that the consent of the father-in-law, if still alive, is essential to a lawful adoption and the equally positive statement that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nearest in relationship who are capable of forming an intelligent and honest judgment on the matter. It must, however, be added that, save in exceptional cases such as those mentioned above (where the near agnate is a minor or lunatic or actuated by corrupt or malicious motives) the consent of the nearest sapindas must be asked, and if it is not asked it is no excuse to say that they would certainly have refused. 20. There could be nothing plainer than this statement. The nearest agnates who are capable of forming an intelligent and honest judgment have to be consulted in the matter of a proposed adoption by a widow. It will be observed that the word sapindas is used in this passage and that the context demands that it be read as meaning agnates . 21. In Sri Krishnayya Rao v. Surya Rao Bahadur Garu (1935) 69 M.L.J. 388 , the Privy Council observed: The sapindas are to be regarded as a family council Vellanki v. Venkata Rama, the natural guardians of the widow, and the protectors of her interests. In giving or withholding their consent, it is their duty, in this capacity, to form an honest and intelligent judgment on the advisability or otherwise of the proposed adoption in, and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Board. The argument was rejected and it was in this connection that their Lordships made the observation on which the appellant places so much stress. 25. In my opinion the judgments of the Privy Council are to be read as deciding that the widow of a divided brother, not having received from her husband authority to adopt a son to him, can only do so when she has received the consent of her father-in-law, if alive. If the father-in-law is dead she must receive the assent of her husband's brothers. If there are no brothers living, the nearest agnates are her proper advisers. If consent is improperly withheld she may nevertheless lawfully adopt with the consent of the next nearest agnates. If there are no agnates she must look for advice to the cognates, it having been definitely laid down that she is not competent in law to decide on an adoption for herself. The same rule of priority will naturally apply in the case of cognates. In view of the emphatic statement with regard to the position of the father-in-law in the Ramnad case (1868) 12 M.I.A. 397, the equally emphatic statements in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments of the Privy Council show that it cannot b e regarded as the governing factor. Sound advice to the widow is the most important consideration in the performance of an act which may be regarded as a religious duty, certainly an act which according to the Hindu religion will confer spiritual benefit on her deceased husband. The best advice is obviously to be expected from the dead husband's agnates, and it seems to me that the Privy Council has clearly indicated that if there are agnates, they and they alone, are the proper advisers of the widow. In the present case the widow received the consent of her husband's nearest agnates and I hold that the fact that the major son of Rathamma did not consent does not invalidate the adoption. 27. The conclusion that the daughter's son is not entitled to be consulted is the conclusion which Oldfield and Phillips, JJ., arrived at in Viswasundara Rao v. Somasundara Rao I.L.R.(1920) 43 Mad. 876, by Jackson, J., in Anne Brahmayya v. Chdasami Rattayya (1924) 20 L.W. 503 and by Madhavan Nair and Jackson, JJ., in Murahari Brahma Sastri v. Sumitramma (1933) 66 M.L.J. 577 : I.L.R. 57 Mad. 411 and I may add that the same opinion is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mayya v. Chelasami Rattayya (1924) 20 L.W. 503. While a Judge of the High Court sitting alone is not bound on a question of law by the decision of another Judge sitting alone this principle goes no further. The Division Bench is the final Court of Appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity. See The Vera Cruz (No. 2) (1884) 9 P.D. 96, Harrison v. Ridgway (1925) 133 L.T. 238, Ratkinsky v. Jacobs (1929) 1 K.B. 24 and Phillips v. Copping (1935) 1 K.B 15. If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the Rules of this Court provide. If this course is not adopted the Courts subordinate to the Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adoption is valid. 34. The question has to be decided on a few texts of Hindu Law and on judicial decisions. Under the Hindu Law an adoption is always made to the husband. While the husband is alive he alone can adopt a son. He may associate his wife or one of his wives if he has more than one wife in the act of adoption; but he need not associate any one of them and can make the adoption by himself. 35. The wife's capacity to make an adoption is based on the fact that, adoption is an act which confers great spiritual benefit on her husband. But when can she make an adoption? 36. The text of Vasishta which is often quoted is- Nor let a woman give or accept a son unless with the assent of her lord. 37. This text is accepted by the various commentators but has been interpreted by them in different ways. One extreme view which has prevailed in the Mithila School is that, This consent of the husband must be given at the time of the adoption itself so that, no adoption is possible after the husband's death. Thus no adoption by a widow is possible under the Mithila School of Law. The other extreme view is that which prevails in Bombay where it is held that adoption being an act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority of the husband. But in Strange's Hindu Law there are set out a number of cases decided by this Court in which the widow's power of making an adoption with the consent of sapindas was upheld. 43. The matter came up in the Ramnad case, The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 , before the Judicial Committee. After referring to Strange and Colebrooke their Lordships recognised the power of a Hindu widow to adopt a son with the husband's kinsmen's consent. In later cases the Judicial Committee expressed the same view in different language. 44. The question now before us has to be decided mainly on the judicial decisions. In a case of this kind we have primarily to see what the Judicial Committee has laid down in the several cases which went up for decision. 45. In the Ramnad case (1868) 12 M.I.A. 397 , there was a very distant agnate of the husband, and the mother of the husband. The widow adopted with the consent of both. The Judicial Committee held that the adoption was valid. The reference to the consent of the mother-in-law may be left out because it is on account of the presumed incapacity of a woman to act independently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swered in three decisions of the Judicial Committee, Jonnalagadda Venkamma v. Jonnalagadda Subramanyam (1906) 17 M.L.J. 114 : L.R. 34 IndAp 22 : I.L.R. 30 Mad. 50 , Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 and Krishnayya v. Lakshmipathi (1920) 39 M.L.J. 70: L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 . It is clear from these decisions (1) that it is enough if she obtains the consent of the nearest sapindas and that if she gets their consent, she need not go further and seek the consent of the remoter sapindas; (2) that she is bound to consult all the nearest sapindas and failure to consult even one of them will be fatal; (3) that even if it be certain that the nearest sapindas would refuse to give their assent, still she is bound to consult them. In dealing with this question, the Judicial Committee has used in Veera Basavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 70 : L.R. 47 IndAp 99 : I.L.R. 43 Mad. 650 , language which is relied on by Mr. V. Govindarajachari, in support of his case. In that case, the nearest sapinda was not consulted at all; and the widow obtained the consent of the remoter sapindas and made the adopti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial right and making him inherit next after the widow and the daughter and before the father and the mother. (See Manu Chapter IX, pl. 127 to 136. Vishnu, Chapter XV, pl. 46.) As for the first ground urged it is not clear that in fact on the true principle of Hindu Law relating to the efficacy of the funeral oblations, the daughter's son is in any way superior to a brother's son. (See Sarvadhikari, Law of Inheritance, Second Edition, pages 662 and 663). He sums up the position thus on page 663 as to performance of parvana sradha: In the case of maternal ancestors, the daughter's son should also celebrate these rites as an act of moral obligation although not legally bound to do so. 54. He also points out that it is legally obligatory on a person to perform these rites as regards his paternal ancestors. Thus a brother's son is legally bound to offer pindas at parvana sradha to the deceased's father and grandfather to whom the deceased also was offering pindas. But a daughter's son is not legally bound to offer any pindas to his maternal ancestors. Further, what a daughter's son offers are termed secondary pindas, whereas the pindas offered by agnates are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argues that even the brothers are not entitled to be consulted in preference to a daughter's son. But the passage in Veerabasavaraju v. Balasurya Prasada Rao (1918) 36 M.L.J. 40 : L.R. 45 IndAp 265, leaves no room for doubt that in the absence of the father, the brother is placed in the same position which the father occupied. The Judicial Committee says that the brothers are as much interested in the protection of the inheritance and in the spiritual welfare of the deceased as the father-in-law was and the two are placed in the same position so far as this matter is concerned. If therefore we read the passage at p. 1009 of the above report, it is clear that the Judicial Committee treats the father and the brothers as standing on the same footing. When the father is alive, he is to be consulted and when he is dead the brothers are entitled to be consulted. Their consent is an essential requisite and it is enough if their consent is got. The passages occurring in pages 1010 and 1011 are therefore to be understood as dealing with practical rules to be applied as to who, among the various agnatic sapindas, are to be consulted and in what order. So understood the passages at pages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We are now not concerned with the question whether in the absence of agnates the widow might adopt with the consent of cognates. If both agnates and cognates co-exist the agnates must certainly be consulted in preference to cognates. In Kesar Singh v. The Secretary of State for India AIR 1926 Mad 881, Mr. Spencer lays down the rule that when both cognates and agnates exist, the agnates are entitled to preference in the matter of consultation. It is not necessary to say much about the observations of the Judicial Committee in the recent Uthumalai case, Balasubramanya Pandya Thalaivar v. Subbayya Thevar AIR 1939 Mad 168. As pointed out in the judgment of my Lord just delivered the question did not arise for decision. The point had been mooted in the trial Court but had been given up in the trial Court. This was not urged in the High Court or in the printed case before the Judicial Committee. The Judicial Committee was not prepared under the circumstances to allow the appellant to raise that question at. all. Having said so there is the observation relied upon by Mr. Govindarajachari. This cannot be taken to be a definite pronouncement on the question. At any rate it does, not deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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