Sri Vadrevu Ranganayakamma Garu ... vs Ryali Somasundara Rao on 29 April, 1920

Madras High CourtMadras High CourtSri Vadrevu Ranganayakamma Garu ... vs Ryali Somasundara Rao on 29 April, 1920Equivalent citations: 59 Ind Cas 609Author: OldfieldBench: Oldfield, PhillipsJUDGMENT

Oldfield, J.

1. The question in this case is, generally, whether 2nd defendant is the adopted son of the late Zamindar ofVegayammapata. Plaintiff originally denied that any adoption ceremony had been performed but heabandoned that position at the trial. There and here he has pressed only four objections, two to the consent ofthe kinsmen, which, in the absence of authority from her deceased husband, 1st defendant, the widow requiredto enable her to make a valid adoption, and two to the capacity of 2nd defendant to be adopted. I deal withthem in order.

2. Of the kinsman, two, Bhimasankara Row and Suryaprakasa Row, died during the trial. Neither informed 1stdefendant of his reasons for not consenting to the adoption. Vide Venkatakrishnamma v. Annapurnamma 23M. 488 : 10 M.L.J. 73 : 8 Ind. Dec. (N.S.) 741. The former in fact did not refuse his consent explicitly. Part ofthe lower Court's judgment is occupied with their failure to consent. But nothing has been said regarding it byplaintiff in this Court and J, therefore, turn at once to his attack on the four kinsmen who consented.

3. The allegation is, first that the consents of these four were obtained by corrupt means. Defendants beforethe trial naturally asked for particulars, bat the lower Court in its order, Exhibit CXLII, did not insist on themon account of the delay in making the request, which may have been correct although fit also gave theremarkable reason that, plaintiff having stated that the corruption was by payment of money defendants wereentitled to nothing more and could not expect plaintiff to disclose his evidence. In fast plaintiff, in ExhibitCXLII (6), had said that he could not give any particulars of the money payments alleged, until he hadinspected the defendants' amounts; and his case must therefore, start under the strongest suspicion that thedetailed story he attempted to prove was invented for the trial. It was that Rs. 520 were paid to the fourkinsmen concerned; and there was also evidence to show that they were poor and would easily be corrupted,that they were in funds more or less shortly after the alleged payments, and that 1st defendant's accountscontained a fictitious entry, by which the withdrawal of so large a sum from her treasury could have beencovered. It is, however, unnecessary to pursue this in detail, because, after we had intimated our opinion as tothe evidence regarding one of the four, Akkiraju, Mr. P. Narayanamurthy for plaintiff said that he would, notargue against the finding in respect of the others. As regards Akkiraju the evidence of his poverty may beaccepted. That relating to his sudden accession of funds showed only that he made a purchase seven monthsafter the alleged payment; and there is no necessary or probable connection between the two. The entry in 1stdefendant's accounts was made in June, whereas the bribe was paid, if at all, in the previous January and, asthe large payment entered is described as representing previous disbursements made from time to time for aschool, there is no re son why the closure of the school very shortly afterwards should justify suspicion of it.But all this is of very little moment, when the direct evidence regarding the payment of the money isconsidered. To leave out of account the uncorroborated evidence of the 3rd witness for the plaintiff, a personof no particular credit who said that in a conversation on an unspecified date Akkiraju told him of the receiptof the money, there is only the evidence of the 8th witness for the plaintiff regarding its actual payment,described as having taken place in the afternoon at so public a place as a Sub- Registrar's office. He is aservant by profession and deposed, with a certain amount of prevaricator, that Akkiraju's share was kept byhis master, one Buchiraju, who is now dead, Akkiraju's co son in-law and creditor. There is the evidence ofthe 14th witness for the plaintiff, a person who had to borrow petty sums from his master Buchiraju for hiswife's funeral and the medical treatment of his wife, that seven months later this money was used to settle adebt due by Akkiraju and to obtain a re sale of property previously sold for its discharge. That evidence is

Sri Vadrevu Ranganayakamma Garu ... vs Ryali Somasundara Rao on 29 April, 1920

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improbable in its details, especially in the statement that, when Rs. 1,553-0-0 were tendered by the witness toBuchiraju as provided by the first sale deed, Exhibit A A, the latter refused it. Akkiraju no doubt was notexamined. But there is no reason for believing this evidence or holding that the payment of any part of the fivethousand rupees to him is in any degree corroborated by it. I agree with the lower Court that the payment isnot proved and that there is no ground for a conclusion that the consents of these four kinsmen were obtainedby corruption.

4. The lower Court, however, in a portion of its judgment, which it is not possible to understand, hasnevertheless held that these consents were not such as to show that the adoption was made by the widow, notfor corrupt or capricious motives, but on a fair consideration of what may be called the family council,although it afterwards found that "let defendant's motive is not very material in itself and that plaintiff canquestion the 1st defendant's motive in so far as it can be inferred from the conduct of the sapindas, who gavetheir consent." If this means, firstly, that the consent of the sapindas is material as guaranteeing the proprietyof the widow's action and, secondly, that nothing can be deduced from the consent owing to the circumstancesin which it was given, the first conclusion may be endorsed. But, as regards the second, it has been found thatconsents were given, which are not shown to have been obtained by fraud, coercion or corruption; and that issufficient, for the Court's right to scrutinize the kinsmen's reasons extends only to cases, in which consents arerefuted, not to those in which they are granted. The responsibility is imposed by the law on the kinsmen andthe Court cannot interfere with their exercise of it. We have here, subject to the argument to be nextconsidered, the contents of the four nearest sapindas and if plaintiffs text objection cannot be sustained theauthority thus conveyed will be sufficient.

5. That objection is that plaintiff, as the daughter's son of the widow's deceased husband, was entitled to beconsulted and that the adoption made without consulting him was bad.

6. There is no explicit decision that a daughter's son is to be considered a kinsman or gnati or should beconsulted regarding an adoption. But plaintiff relies on, and the lower Court has found for him onconsideration of, certain cases, in which consultation with or consent of the reversionary heirs of the deceased,to whom the adoption is, made, is referred to as essential, and that he is such an heir there is no doubt, Contra,however, it is argued that in those cases the position of the daughter's son was not in question and that thereference to the reversionary heirs was made loosely, nothing in the circumstances turning on the distinctionbetween them and the agnates, whose right to be consulted arises only from their responsibility for thespiritual welfare of the deceased. Plaintiff's contention has been supported by reference to principle and toauthorities.

7. It is first material that in the earliest authority, the decision in the Ramnad case Collector of Madura v.Moottoo Ramalinga Satupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar PC J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1 Ind. Dec. (N.S.) 1 by the Judicial Committee in 1868, the doctrineof the widow's power to adopt with the consent of the kinsmen was recognized, not so much with reference toanything explicit in early texts as because it had been received by the particular school of Hindu Law, whichgoverned the district in question. Accordingly, after reference to such reception as evidenced by the works ofMr. Colebrooke and of Sir Thomas Strange and the opinions of the Pandits the Committee observed that theassents of the kinsmen seem to be required by reason of the presumed incapacity of woman for independencerather than the necessity for procuring the consent of all those whose possible and reversionary interest wouldbe defeated by the adoption. That this was the basis of the Committee's conclusion is material in connectionwith the texts on which plaintiff has relied, as indicating the basis on which the doctrine is really founded. Forit will be seen that the portions of them on which plaintiff's argument depends, is not that which theCommittee had in mind.

8. The earliest of the texts is Manu, Ch. V, pl. 148, which runs in Sir W. Jones translation: "In childhood musta woman be dependent on her father; in youth on her husband, her lord being dead, on her sons.... A womanmust never seek independence." This is repeated in Ch. IX, pl. 3 and its last sentence may be supposed to be



the earliest appearance of the foundation for the Committee's conclusion, so far as texts were in question.Plaintiff, however, relies on the gloss of the well-known commentator--Kulluka Bhatta, printed by Sir W.ones upon sentence just quoted: "If she has no sons, on the near kinsmen of her husband; if he left nokinsmen, on those of her father; if she has no paternal kinsman, on the sovereign;" and it is on this and similarreferences to the widow's dependence that the theory of the right of the agnates to concern themselves withher adoption rests. Another such reference is to be found in Yagnavalkya Ch. I, verse 85: "Let a female betaken care of by her father, while a maiden; by her husband when married; and by her sons in old age. If noneof these exist, let other gnatis take care of her. A woman is never fit for independence;" and this, as appearsfrom Adusumalli Krishnayya v. Adusumalli Lakshmipathi 32 Ind. Cas. 253 : 80 M.L.J. 265 at p. 269 : 19M.L.T. 286, is interpreted by Viramitrodaya, as follows: "But, when the husband is dead, the assent of thoseonly is necessary, on whom she is dependent." Again, in Narada, Ch. XIII, verse 28, quoted in Ghose'sPrinciples of Hindu Law, 3rd Edition, Vol. 1, page 323, "after the death of her lord, the relations of thehusband shall be the guardian of the woman, who has no son. They shall have full authority to control her, toregulate her manner of life and maintain her. When the husband's family is extinct or contains no male or isreduced to poverty, or when no one related to it within the degree of a sapinda is left, the father's relationsshall be the guardians of a woman." And there is, lastly, the statement of Mr. Colebrooke in his commentaryon the Mitakshara, Ch. I, Section XI, Pl. 9, that whilst the author of the Vyavaharamayuka admits the right ofthe widow to adopt without her husband's authority he requires that she shall have the express sanction of hiskinsmen, and there are certain cases to the same effect in Strange's, Hindu Law and Hindu Law Cases.Plaintiff argues that the reference to kinsmen in those cases include cognates as well as agnates, not onlybecause this is entailed by the words used but also because it is involved in the underlying principle.

9. The term "Kinsmen" is, of course, ambiguous; and reference is necessary to the words used in the Sanskrittexts, "sapinda" and "gnati". But the former may or may not include bhinna ghotra as wall as ghotrajasapindas, the daughter's son being included only in the former; and we have not been shown authority forholding that Kulluka Bhatta in his gloss was using it in the one sense rather than the other. Similarly, asregards the reference to the exhaustion of the husband's sapindas in Narada. The difficulties in the way ofadoption of one invariable rendering for the term in the case of one text, the Mitakshara, are illustrated byreference to Ramchandra Martand v. Vinayak 25 Ind. Cas. 290 : 41 I.A. 290 : 18 C.W.N. 1154 : 27 M.L.J.333, 1 L W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447, (1914) M.W.N. 835 : 16 Bom. L.R. 863 : 12 A.L.J. 1281 :20 C.L.J. 673 : 42 C. 384 (P.C.). It is, however, significant that in the Ramnad case 12 M.I.A. 397 : 10W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar P C J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1 Ind.Dec. (N.S.) 1 one Muthusami, a Samanodaka, was excluded from the category of sapindas, and that theJudicial Committee may, therefore, be supposed to have used the term in its stricter sense, It is possible to sayonly that plaintiff has not established the inclusion of bhinna gotra sapindas in it, and I, therefore, turn to theother expression which is in question.

10. The word gnati in its primary significance is no doubt limited to agnates. Vide Apte's Dictionary. Mr.Ghose, in one passage in his Principles of Hindu Law at Volume 1, page 183, dealing with inheritance, has nodoubt translated it sapinda but in connection with an argument limiting sapindas to agnates, and elsewhere inconnection with adoption (page 677) he translates it as agnate directly. In Mr. Mandlik's Hindu Law, at page57, the word is rendered in the passage from Yagnavalkya already quoted as Clansmen and in West andBubler (A Digest of the Hindu Law of Inheritance, Partition and Adoption, etc.,) at page 1,006 as the Gentilerelatives, the agnatic significance being clear. In Adusumalli Krishnayya v. Adusumalli Lakshmipathi 32 Ind.Cas. 253 : 80 M.L.J. 265 at p. 269 : 19 M.L.T. 286 the decision in Chinnakimid case Sri Virada PratapaRaghunada Deo v. Sri Brozo Kishoro Patta Deo 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R. 29l : 3 Sar.P.C.J. 533 : 3 Suth. P.C.J. 263 : 1. Ind. Dec.(N.S.) 45 (P.C.)] was read as showing that the text ofYagnavalkya should be understood as limiting the expression "gnatis" to those who are in the line of heirs tothe last bolder and to this decision I shall return. But in Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48Ind Cas. 706 : 41 M. 998 : 25 M.L.T. 1 : 17 A L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 C.L.J. 184 : 9 L.W.243 : 21 Bom. L.R. 238 : 1 U.P.L.R. (P.C.) 18: 45 I.A. 265 (P.C.), the Judicial Committee at page 1004 Pageof 41 M.--Ed. itself explained the Ramnad case 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth



P.C.J. 135 : 2 Sar P C J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1 Ind. Dec. (N.S.) 1 as deciding that the widowmight adopt with the consent of the male agnates. All this is against and nothing has been adduced in favourof this part of plaintiff's argument. It is in fact on the theory as deduced from the underlying principle that; herelies.

11. Before examining that theory I refer to one form, in which it has been supported, that the daughter's son'sconsent is required to validate the widow's adoption, because it is required, in the case of her alienations, hisheirship being the reason in both cases; and there is no doubt that this argument is referred to, although it doesnot appear to have been pursued in Sunkuru Suryanarayana v. Sunkuru Ramadas 43 Ind. Cas. 526 : 41 M. 604at p. 605 : 22 M.L.T. 501 : 4 M.L.J. 87 at p. 92 : 7 L.W. 72 : (1918). M.W.N. 208 and Vinayak v. Govind 25B. 129 at pp. 133, 134 : 2 Bom. L.R. 820 where the extract given above from Narada is quoted, and by theJudicial Committee in Veerabasavaraju Pantula v. Balasurya Prasada Rao 48 Ind Cas. 706 : 41 M. 998 : 25M.L.T. 1 : 17 A L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 C.L.J. 184 : 9 L.W. 243 : 21 Bom. L.R. 238 : 1U.P.L.R. (P.C.) 18: 45 I.A. 265 (P.C.) and it may by admitted that, so far as the character of the consent isconsidered in them as presumptive evidence, to use the words of Seshagiri Aiyar, J., in the first of theseauthorities, of the goodness of the widow's act, the analogy may be instructive, it does not, however, followand it is not the case that a general argument from the persons who must give and the motives recognised forrequiring consents in the one class of cases to the persons and motives appropriate in the other is admissible.For to contrast them, consultation with the kinsmen, if not, their consent, is a condition precedent to a validadoption, one consenting person may be regarded as representing others; and the consent of all who have to beconsulted is not necessary. But in the case of an alienation the law, as stated recently in Rangasami Goundenv. Nachiappa Gounden 60 Ind. Cas. 498 : 46 1. A. 72 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 42 M. 523 : 26 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R.(P.C.) 661, is that an aliention can be supported on its merits with reference to necessity and independently ofconsent; that consent, not merely consultation, is essential, and that the consent of every person who mayfairly be expected to be interested to dispute the transaction, is required. And in view of these differences itwould be unsafe to assume, what has never statedly been decided, that the principle underlying the validationof the widow's act by consent of or consultation with other persons is the same in the two cases. The view ofthe necessity for the consent?, for which plaintiff contends, is that they are required as a guarantee for thewidow's motives in adopting, which should be, not only the promotion of the spiritual interests of herdeceased husband, with which admittedly the daughter's son is not concerned, but also the protection of hisestate for his heirs, and that the daughter's son being among those heirs is entitled to a voice in deliberationswhich affect his interests. It is no doubt not a valid objection to this theory that no similar claim is made forthe daughter, who is a nearer heir, since, as a woman, she must be regarded as equally incompetent with thewidow and as incapable of advising her. But it is a practical consideration that, ordinarily, the daughter's sonwill be a minor and his advise will be useless, when the adoption is under discussion. Another difficulty arisesin connection with the position of the daughter's son, in the order of heirs before the parents and other agnates,since it is impossible to reconcile the right of the first mentioned to express a decisive opinion with theobservations in the Ramnad case 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar PC J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1 Ind. Dec. (N.S.) 1 which have also been quoted in later decisionson the exceptional value to be attached to "the consent of the father-in-law to whom the law points as thenatural guardian and venerable protector of the widow," as in itself a sufficient justification for her action. Inthat case the purpose for which the assent of the kinsmen is insisted on is stated solely and unambiguously andin terms never subsequently repudiated as being to show that the act was done by the widow in the proper andbona fide performance of a religious duty and neither capriciously nor from a corrupt motive; "and thereligious obligation to adopt" in order to complete or fulfil defective religious rites is mentioned. Again, in theChinnakimidi case 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R. 29l : 3 Sar. P.C.J. 533 : 3 Suth. P.C.J.263 : 1. Ind. Dec. (N.S.) 45 (P.C.) there was a reference to the principle that the validity of an adoption is to bedetermined rather by spiritual than temporal consideration?, that the substitution of a son of the deceased forspiritual reasons is the essence of the thing and the consequent devolution of property an accessory of it. Thisstatement is no doubt made by way of an argumentum ad hominem, in respect of a previous judgment ofHolloway, J., and it is followed by the observation that, while it may be the duty of a Court of justice



administering Hindu Law to consider the religious duty of adopting a son as the essential foundation of thelaw of adoption and the effect on the devolution of the property as a mere legal consequence, it is impossiblenot to see that there are grave social objections to making the succession to property and, it may be, in thecase of collateral succession the right of persons actually in possession dependent on the caprice of a woman.But the only inference drawn was that the Court should keep the power strictly within the limits which the lawhas assigned to it apparently in the particular case under disposal by refusing to extend it, as Holloway, J.,proposed, to authorise an adoption made with the consent of any one sapinda. The Ramnad case 12 M.I.A.397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar P C J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1Ind. Dec. (N.S.) 1 was further explained in the Guntur case [Vellanki Venkata Krishna Rao v. Venkata RamaLakshmi I M. 174 : 4 I.A. I : 1 Ind. Jur. 63 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 3 Suth P.C.J. 353 : 1 Ind. Dec.(N.S.) 116 (P.C.) and in connection with the requirement in the former that "the adoption should be made bythe widow in the proper and bona fide performance of a religious duty and not capriciously or from a corruptmotive", it was observed that it "would be dangerous to introduce questions as to the particular motivesoperating on the mind of the widow" and that only proof of" such assent on the part of the sapinda wasrequired as should be sufficient to support the inference that the adoption was made, not from a capricious orcorrupt motive, but upon a fair consideration by what may he called a family council of the expediency ofsubstituting a son by adoption to the deceased husband." These sages are the foundation of the doctrine of theconsent of kinsmen as the widow's authority. Throughout them the religious motive insisted on in Ramnadcase 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar P C J. 361 : 20 E.R. 389 : 3Mad. Jur. 298 : 1 Ind. Dec. (N.S.) 1 is not abandoned; and if in the Chinnakimidi case 1 M. 69 : 3 I.A. 154 :11 Mad. Jur. 188 : 25 W.R. 29l : 3 Sar. P.C.J. 533 : 3 Suth. P.C.J. 263 : 1. Ind. Dec. (N.S.) 45 (P.C.) it isrecognised that temporal considerations cannot be lost sight of, that can be explained consistently with thelanguage used on the ground that reference to them will be a safeguard against the caprice or corrupt intentionof the widow, as in many cases involving the disintegration of the estate. Adusumali Krishnayya v. AdusumiAli Lakshmipathi 32 Ind. Cas. 253 : 80 M.L.J. 265 at p. 269 : 19 M.L.T. 286 supplies an actual instance of theentertainment by her of such an intention, in case one is required.

12. It is in fact only after a considerable interval and in the case last cited that plaintiff can find anythingdirectly supporting his contention. There Seshagiri Aiyar, J., after agreeing that the motive which shouldguide a widow, should be to minister to the spiritual wants of her husband, said that the assent of the sapindasshould not necessarily be regarded as a religious act, because the text of Yagnavalkya already referred toimplied that her protection by them in temporal affairs alone was contemplated. So far this is in plaintiff'sfavour. But it is not clear in what shape the argument from the existence of the religious motive was relied onor how its rejection influenced the decision, that the assent of a mere majority of sapindas, without referenceto their character as mere reversioners was insufficient. For the learned Judge was dealing with a case, inwhich the consent of only one out of the six nearest sapindas had been obtained and the question was whetherthe other five should have been ignored. And he, therefore, had not to consider whether consultation with amore remote reversioner such as the present plaintiff, was obligatory or whether heirship, apart from spiritualresponsibility, was material. He, in any case, proceeded to hold with reference to the interpretation placed onthe text of Yagnavalkya by the Viramitrodaya that the guardianship of the widow did not vest in the wholebody of gnatis, the natural interpretation being that she was dependent on those nearest to her husband; and heregarded the judgment in the Guntur case I M. 174 : 4 I.A. I : 1 Ind. Jur. 63 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 3Suth P.C.J. 353 : 1 Ind. Dec. (N.S.) 116 (P.C.) as negativing the plea that the widow in obtaining the consentsdid not act on spiritual considerations. Nothing then was actually decided against the view that the spiritualshould be the dominant consideration and much was said in favour of its being so; and there is no departurefrom that view in the observation of the same learned Judge in Sunkuru Surayanarayana v. Sunkuru Ramadoss43 Ind. Cas. 526 : 41 M. 604 at p. 605 : 22 M.L.T. 501 : 4 M.L.J. 87 at p. 92 : 7 L.W. 72 : (1918). M.W.N.208 that the powers of consent had been given to the sapindas, as they were interested in the property andwere expected to see that the spiritual welfare of the deceased was not jeopardized. Plaintiff relied lastly onthe decision in Veerabasavaraju Pantulu v. Balasurya Prasada Rao 48 Ind Cas. 706 : 41 M. 998 : 25 M.L.T. 1 :17 A L.J. 34 : 36 M.L.J. 40 : 23 C.W.N. 251 : 29 C.L.J. 184 : 9 L.W. 243 : 21 Bom L.R. 238 : 1 U.P.L.R.(P.C.) 18: 45 I.A. 265 (P.C.). In this Court the question of spiritual motive was not dealt with, because the



Bench; of which I was a member, reached a conclusion against the widow's authority on other grounds. But inappeal the Judicial Committee, confirming this Court's decision, referred to it at some length and undoubtedlyspecified the possession of an interest in the protection of the estate as a qualification for inclusion in whatwas described in the Guntur case I M. 174 : 4 I.A. I : 1 Ind. Jur. 63 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 3 SuthP.C.J. 353 : 1 Ind. Dec. (N.S.) 116 (P.C.) as the family council. They, moreover, quoted the opinion expressedin Golapchandra Sirkar Sastri's Hindu Law of Adoption that adoption is more a temporal than a spiritualinstitution and that, the requisites for a valid adoption being all temporal, the spiritual considerations shouldnot be allowed to influence the judgment regarding the secular essential. If it were clear that this opinion hadbeen adopted by their Lordships, it would go far towards supporting plaintiff's contention, that a daughter'sson, on whom no spiritual responsibility rests and whose temporal interest in the reversion is comparativelyclose, is entitled to be nonsuited. But in fact the judgment does not either before or after this quotation expressapproval, either comprehensive or qualified, of the views contained in it, and there is no attempt to reconcileor contrast them with the references to religious duty contained in extracts from the Ramnad case 12 M.I.A.397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar P C J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1Ind. Dec. (N.S.) 1 occurring elsewhere in the judgment, except a statement with reference to it and the Gunturcase I M. 174 : 4 I.A. I : 1 Ind. Jur. 63 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 3 Suth P.C.J. 353 : 1 Ind. Dec. (N.S.)116 (P.C.) that rights of property cannot be left out of consideration when the question what sapindas consentis primarily requisite is under consideration. It may be added that the learned author in the sentence prior tothat cited by their Lordships (Op. cit. page 259), apparently describing the opinion of this Court in languagetaken from the judgment in the Chinnakimidi case 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R. 29l : 3Sar. P.C.J. 533 : 3 Suth. P.C.J. 263 : 1. Ind. Dec. (N.S.) 45 (P.C.), admitted that it does not share his views;and I would observe with all respect that this reasoning, as it appears in earlier passages of his work (pages 43,45, 142, 145), seems to be rather influenced by his own experience of the actual sentiments or conduct ofparticular sections of the public than by the origin and development of the doctrine of adoption by consent ofkinsmen in the authorities usually relied on.

13. On these authorities the conclusion must, in my opinion, be that the spiritual motive is at least dominantand consultation with those, who can appreciate it is essential. That the promotion of the deceased's estateshould be excluded from consideration as a motive is, as the authorities recognize, not to be expected ordesired; and the extent to which it should be or in particular cases has been considered with reference rather toan estimate of the purity of the widow's motives than to the reversioner's prospects, is incapable of precisedefinition. But the conclusion must be that it is of secondary importance; and that corroborates theconstruction placed on the actual wording of the texts by which the daughter's son, to whom, it is not disputed,only the temporal motive can be supposed to appeal, is not one of the gnatis, whom it is necessary for thewidow to consult.

14. This conclusion entails that the consents obtained by the widow were a sufficient authority for her actionand I therefore, turn to the first of plaintiff's objections to the capacity of 2nd defendant for adoption. Thefacts on which it is based are that 1st defendant originally went through the ceremony of adopting him in1900. A suit similar to that now before us was brought and the adoption was declared invalid by the lowerCourt on one ground, that he was incapable of adoption, being her daughter's son. She, however performed theceremony of his upanayanam whilst an appeal to this Court was pending. After its decision against her on adifferent ground and the consequent failure of the adoption already made, she again on 24th January 1907adopted 2nd defendant, that being the adoption with which we are concerned. The plaint averment regarding itwas that, the ceremony of adoption having been performed with regard to 2nd defendant, although thatadoption was found invalid, he was ineligible for any further adoption. On this the issue framed, it wouldseem without objection, was whether the adoption of a daughter's son" (meaning apparently a person of adifferent gotra) "after his upanayanam is invalid?" and although there is some divergence from the pleadingsthat, it is agreed, is what we have to decide. It has been necessary to state the point thus fully, because it hasbeen dealt with by the lower Court, not, as it apparently was presented to it and is presented here withreference to the general incapacity of a person, whose upanayanam has been performed, for adoption, but withreference to the effect of the upanayanam as introducing him into gotra of his adoptive family and the



impossibility of his acquiring any further rights in it, in case a subsequent adoption should be made. To suchan argument the answer would be simple, that either the upanayanam did introduce him into the new gotra andfix his position there, a a new adoption being superfluous, or that it did not and there would be no obstacle toan adoption, which would do so.

15. The argument, as it is put forward here, involves, it is plain, firstly, that the upanayanam, althoughcelebrated by 1st defendant on the incorrect assumption that 2nd defend ant had entered her family andbecome her son, was a valid performance of the ceremony, and secondly, that no person, who has undergoneupanayanam, can be adopted into another gotra, inasmuch as his undergoing the ceremony in the gotra inwhich his spiritual duties are to be performed is an indispensable qualification for their performance." On bothpoints we have been referred to the opinion expressed in Bhattachary's Hindu Law, 3rd Edition, Volume I,page 456, that even if the upanayanam and marriage are performed in the family of the adopter, the informallyadopted boy will not loose his rights in the family of his natural father", and that "the ceremony ofupanayanam performed by the adoptive father would be valid, as if performed by a volunteer priest." On the2nd point above specified this cannot be accepted since the decision in Viraraghava v. Ramalinga 9 M. 148 atpp. 161, 163 : 3 Ind. Dec. (N.S.) 500 proceeds on the assumption which apparently was not and has not sincebeen contested, that a boy who has received upanayanam outside the gotra, cannot enter it by adoption. On thefirst point, which alone remains, the opinion of the learned author, in support of which he adduces noauthority, is contrary to the decision of Colville, O J., quoted by him in Sreemutty Rajcoomaree Dosses v.Nobo Coomar Mullick 1 Boulnois 137 : 3 Ind. Dec. (O.S.) 82 and also to the view taken in Sanskrit texts ofgood repute, of which we have been supplied with private translations, accepted by both sides. Thus, in theDharma Sindhu, Nirnaya Sagara Press Edition, (a work referred to as authoritative in Mandlik's Hindu Lawintroduction LXX), at page 161, reference is made to one kind of upanayanam as that which is re-done onaccount of the first ceremony being inefficacious by reason of a defeat in any of its parts such as the time; andagain at page 150 and in the Nirnaya Sindhu (a work cited in Trevelyan's Hindu Law, page 17) at p. 244 thereis the dictum: "The father alone should perform the upanayanam of his son or in his absence the grandfatherand in his absence the elder brother." In the Vaithianatha Dikshitiyam, Varnasrama Kanda KumbakonamGrandha Edition, a work referred to in Viraraghava v. Ramalinga 9 M. 148 at pp. 161, 163 : 3 Ind. Dec. (N.S.)500 it is said at page 179 Page of 9 M.--Ed.: "The father is the primary or principal person entitled to performupanayanam." and at page 172 (for the performance of upanayanam) only in the absence of any sagotraja(person of the same gotra) is a person of a different gotra to be sought for," Lastly, and this is important withreference to the last portion of Mr. Bhattachary's opinion, the Smriti Chandrike, Mysore Government Edition,lays down at page 88 that, "he is called Guru, who does all the Samskaras (ceremonies) beginning with theNisheka (nuptials) and ending with upanayanam and gives him (the boy) instruction in the Vedas. HereGuruhood belongs to the father alone and to nobody else. Thus, it is established that the father alone is acompetent person to perform upanayanam and other ceremonies.... But that which is said that an Acharya(voluntary priest) performs the upanayanam is only applicable, when there is no father or when ho isdisqualified. For there is no reason for leaving out a competent father."

16. Plaintiff has not met these extracts by citation of others and their result, which I, find no difficulty inaccepting, seems to me to be that an upanayanam Will not be valid unless performed by the father or in his absense another kinsman in the family to which the boy concerned actually belongs, that his upanayanamperformed in a family which be had not in fact entered, would be invalid; and that such an upanayanam canand should be performed again. This entails that the irregular performance of an upanaya nam in a family intowhich the boy is wrongly believed to have entered, is a nullity and is no bar to his subsequent adoption.

17. The result is that the lower Court's decision cannot stand and that we must, in order to the disposal of thecase, call on it to return findings on the issues not yet dealt with Nos. 9, 10, 12, 13, 16. The findings will bereturned on the evidence on record within two months after the re opening of the lower Court. Seven days willbe allowed for filing objections.

Phillips, J.



18. I agree, and have nothing to add.

19. In compliance with the order contained in the above judgment, the Temporary Subordinate Judge ofRajahmundry submitted the following

Findings

20. The suit has been remitted by their Lordships of the High Court for findings on the following issues:

(9) Whether the adoption of a daughter's son is illegal and invalid according to Hindu Law?

(10) Whether the custom of adopting a daughter's son or a sister's son obtains among Brahmins throughout theMadras Presidency or whether, as contended by plaintiff, it obtains only in the southern districts of thePresidency and does not obtain in the Andhra or Telugu portion of this Presidency?

(11) Whether the circumstances in para graph 6 of the plaint are true, and, if so, whether they render the 2nddefendant's adoption invalid?

(12) Whether the succession to the estate of Vegayammapeta is governed by the law of lineal primogeniture?

(16) Whether the adoption is contrary to the provisions of the Impartible Estates Act?

2. 9th issue.--In the case in Bhagwan Singh v. Bhagwan Singh 21 A. 412 (P.C.) : 1 Bom. L.R.311 : 3 C.W.N.454 : 26 I.A. 153, 7 Sar P.C.J. 476 : 9 Ind. Dec. N.S.) 971 their Lordships of the Privy Council held that theadoption of a mother's sister's son by a Hindu of any of the three regenerate classes (Brahmins, Kshatriyas andVaisyas), equally with the adoption of a daughter's son or a sister's son, is contrary to Hindu Law, that theancient texts condemning such adoptions are not merely monitory but have been judicially decided by all theCourts to be positive prohibitions, and that their effect is to make such adoptions wholly void. Their Lordshipsalso held that the law on the subject has been settled in such a way and for such a length of time as to make itincompetent to a Court of justice to treat the question now as an open one The decision of their Lordships isquite imperative and conclusive on the point and it must accordingly be held on the 9th issue that the adoptionof a daughter's son among the three regenerate classes is illegal and invalid according to Hindu Law is ofcourse admitted for both the parties that such adoptions are not prohibited by law among the sudras.

3. 10th issue: This issue relates to the question of the custom among Brahmins of adopting a daughter's son ora sister's son set up by the defendants. The defendant contention is that the custom prevail generallythroughout the Madras Presidency as in several other parts of India. For the plaintiff it is, on the other hand,asserted that, though the custom obtains among Brahmins in the southern districts of this Presidency, it is notin vogue in the Andhra or Telugu portion of the Presidency. The parties to the adoption in the present case areNiyogi Brahmins of the Godavari District in the Andhra country.

4. In reference to the question of the custom involved in the issue, the learned Vakil for the defence raises apreliminary point of law as affecting the burden of proof. His contention on the point is that, in the Full Benchcase reported in Vayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 the custom of adopting a sister'sson or a daughter son among Brahmins in southern India was recognised by the High Court as being a validone, and that that decision must, in the usual course, govern the Brahmins in the whole of the MadrasPresidency, including also those in the Andhra districts. The arguments in support of the contention arecategorically set-forth in paragraphs 6 to 11 of the 2nd defendant's affidavit, Exhibit 146-L, and it is hardlynecessary to reiterate them here. On the other hand, it is pointed out for the plaintiff that, though the issue andthe finding in the 9 Madras case purport to have reference to the prevalence of the custom in Southern India,the case arose among the Brahmins of the Tanjore District, that the instances of custom adduced in the casewere limited to the Tamil Districts of Tanjore, Trichinopoly Madura and Tinnevelly and that, though their



Lordships in the course of the judgment incidentally adverted to an instance among the Telugu Brahmins ofMadras and to Strange's Hindu Law in reference to a case from the Cuddapah District, there are indications inthe judgment itself that the actual finding related in particular to the southern Districts in the Presidency. Insupport of this contention, reference is made in particular to the observations of their Lordships at page 53 ofthe report, where they expressed themselves as follows:

We are satisfied that the practice of making such adoptions have prevailed among Brahmins in what are nowthe southern districts of this Presidency from time immemorial,

21. The learned Pleader for the plaintiff has also referred to Bhattacharya's Hindu Law, 3rd Edition, page 75,Narasammal v. Balaramacharlu 1 M.H.C.R. 420; Ganga Sahai v. Lekhraj Singh 9 A. 253 at pp. 292, 304 : 5Ind. Dec. (N.S.) 604 and Ganapati Aiyer's Hindu Law, pages 55 and 56, where the Andhra country orTelingana is recognised as a distinct unit of territory apart from the Dravida proper or Tamil country, thoughboth of them, for purposes of general law, come under the main Dravida classification, in which arecomprised Andhra, Carnataka, Ghurjhra, Dravida (Tamil) and Maharashtra as Sub-classifications. The Pleaderalso refers to the ruling in Chain Sukh Ram v. Parbati 14 A. 53 at. p. 57 : A.W.N. (1891) 222 : 7 Ind.Dec.(N.S.) 406 where the ruling in Vayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 has beenunderstood as recognising the custom only among Brahmins in the southern districts of this Presidency, i.e.,Tanjore, Trichinopoly and Tinnevelly. Southern India, as generally understood, includes not only the MadrasPresidency, but also Hyderabad, Mysore and part of the Bombay Presidency, south of the line joining Cuttackwith the Gulf of Cambay; and it could not possibly be that their Lordships in the 9 Madras case intended tofind the existence of the custom in all said countries. In the course of the report, their Lordships observe asfollows at page 50 in reference to a case from the Cuddapah District cited in Strange's Hindu Law:

The case was, it is true, one from the more northern part of the Presidency. But the learned Judge in hisremarks speaks of the custom as prevalent generally.

22. This reference to Cuddapah as the more northern part of the Presidency and the doubt expressed by theirLordships in a way as to the importance of the case on that ground, also seems to afford some indication thatthe expression "Southern India" may have been used by their Lordships in the ruling in its restricted sense asapplying to the southern part of this Presidency, i.e., the portion south of Madras (city). It cannot, of course,be seriously disputed that, for purposes of general law, there are only two main recognised schools, theBenares or Mitakshara School and the Bengal or Daya Bhaga School; but it cannot, I think, be on that groundcontended that the customary law obtaining in the different territories comprised in a particular school mustalways be uniform and identical. It is also true that in the 9 Madras case their Lordships did not confine thescope of their enquiry to the Tamil Districts alone, but proceeded on broader lines; but it does not appear thattheir Lordships intended to find the existence of the specific custom among Brahmins of the Andhra Districtin particular, though Mayne, and some other authors on Hindu Law, seem to have understood the ruling asapplicable to Southern India in general.

5. I, therefore, hold that the burden of proof as to the custom has been correctly set forth in the issue. Further,both the parties having actually adduced all available evidence on the question raised, the discussion undernotice must be said to be of purely academic importance at this stage.

6. Then, in reference to the law as to the essentials of a valid custom and the sort of evidence that is necessaryin proof thereof, their Lordships of the Privy Council ruled in the case Ramnad case Collector of Madura v.Moottoo Ramalinga Sathpathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R.P.C. 1 : 2 Suth P.C.J. 135 : 2 Sar PC J. 361 : 20 E.R. 389 : 3 Mad. Jur. 298 : 1 Ind. Dec. (N.S.) 1 that under the Hindu system of law dear proofof usage will outweigh the written text of the law. In the cases in Sivanananja Perumal v. Muttu RamalingaSethurayar 3M.H.C.R. 75 at p. 77 it was laid down as follows:



What the law requires before an alleged custom can receive the recognition of the Court, and so acquire legalforce, is satisfactory proof of usage so long and invariably acted on in practice as to show that it has, bycommon consent, been submitted to as the established governing rule of the particular family, class, or districtof country; and the course of practice upon which the custom rests must not be left in doubt, but be provedwith certainty.

23. In the case in Gopalayyan v. Raghupatiaypan 7 11. H.C.R. 250 at p. 254, which related to the adoption ofa sister's son, it was ruled as follows:

The evidence should be such as to prove the uniformity and continuity of the usage and the conviction ofthose following it that they were acting in accordance with law and this conviction must be inferred from theevidence.

Evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of Courts, or even ofpanchayats upholding such acts, the statements of experienced and competent persons of their belief that suchacts were legal and valid will all be admissible, but it is obvious that,...evidence of this kind will be of littleweight if unsupported by actual examples of the usage asserted.

24. Again, in Eranjoli Illath Vnhnu Nambutdri v. Eranjoli Illath Krishnan Nambudri 7 M. 3 at p. 10 (F.B.) : 2lad. Dec. (N.S.) 588, which related to the adoption of a sister's son among the Nambudri Brahmins of the westcoast, it is stated thus:

At the same time such a usage as is asserted must be proved by clear and unambiguous evidence; and it mustbe shown that it is exercised in pursuance of a custom understood to have the force of law and not to be amerely repeated violation of law.

25. In the Full Bench case in Vayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 their Lordshipsadhere to the rule in Sivanananja Perumal v. Muttu Ramalinga Sethurayar 3M.H.C.R. 75 at p. 77 and EranjoliIllath Vishnu Nambudri v. Eranjali Illath Krishnan Nambudri 7 M. 3 at p. 10 (F.B.) : 2 lad. Dec. (N.S.) 588,and refer to the ruling of the Privy Council in Ramalakshmi Ammal v. Perumal Sethurayar 14 M.I.A. 570 at p.585 : 12 B.L.R. 396 : 17 W.R. 552 : 3 Sar. P.C.J. 103 : 2 Suth. P.C.J. 603 : 20 E.R. 898, where it was decidedthat it is the essence of special usages modifying the law that they should be ancient and invariable, and it isfurther essential that they should be established by clear and unambiguous evidence. [See pages 45 and 46 ofthe report]. In reference to the case in Gopalayyan v. Raghupatiayyan 7

11. H.C.R. 250 at p. 254, in the course of which it was said that the Court was not prepared to recognise theexistence of any customary law in the case of Brahmins of which no trace appears in any written authority ofthe place to which they belong, their lordships of the Full Bench in the 9 Madras case observe as follows, atpage 45:

All that the Court intended by the observations, from which this inference is drawn, was that strong proof ofusage must be produced to establish a customary law at variance with the law declared in written treatises.

26. In Mirabivi v. Veloyanna 8 M. 461 : 4 Ind. Jur. 267 : 3 Ind. Dec. (N.S.) 317, their Lordships of the MadrasHigh Court, in distinguishing a practice from a custom, remark that, though a practice might be more or lesscommon, it does not become a custom unless it was consciously accepted as having the force of law.

7. In reference to the inter-relation between a custom and a rule of law, Mayne in his learned work on HinduLaw, 8th Edition, observes thus, at pages 56 and 57:

The next question is as to the validity of customs differing from the general Hindu Law, when practised bypersons who admit that they are subject to that law. According to the view of customary law taken by Mr.



Austin, a custom can never be considered binding until it has become a law by some Act, legislative orjudicial of the sovereign power. Language pointing to the same view is to be found in one judgment of theMadras High Court. But such a view cannot now be sustained. It is open to the obvious objection that, in theabsence of legislation, no custom could ever be judicially recognized for the first time. A decision in its favourwould assume that it was already binding. The sounder view appears to be that law and usage act, and re act,upon each other. A belief in the propriety, or the imperative nature of a particular course of conduct, producesa uniformity of behaviour in following it and a uniformity of behaviour in following a particular course ofconduct produces a belief that it is imperative or proper, to do so. When, from either cause, or from bothcauses, a uniform and persistent usage has moulded the life, and regulated the dealings, of a particular class ofthe community, it becomes a custom, which is a part of their personal law. Such a custom deserves to berecognised and enforced by the Courts, unless it is injurious to the public interests or is in conflict with anyexpress law of the ruling power.

8. To summarise the foregoing, a custom, before it can be recognised by the Court as valid, must have theseessentials:

(a) It must be ancient and immemorial.

(b) It must be uniform and continuous.

(c) It must be shown to have, by common consent, been submitted to as the established governing rule of theparticular family or community: or that the persons following it were convinced that they were acting inaccordance with law; or that the custom was understood to have the force of law, but not (understood) to bemerely repeated violation of the law. Or, in the words of Mayne, who sums up the' whole matter, there mustbe a belief in the propriety or imperative nature of the particular course of conduct culminating in a custom.

(d) The custom must be made out by dear and unambiguous evidence.

(e) It should not be immoral or opposed to public policy.

9. While at this stage, it will be convenient to advert briefly to the authorities as to the prevalence of thealleged custom in other parts of this Presidency and elsewhere.

10. In the case in Vaayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427, already cited, the custom ofadopting a daughter's or a sister's son among Brahmins has been upheld at least in reference to the Southern orTamil Districts of the Presidency. And, following that ease, the adoption of a brother's daughter's son bycustom was upheld in Appayya Bhattar v. Vengu Bhattar 15 M.L.J. 211. In the Full Bench case in EranjoliIllath Vishnu, Nambudri v. Eranjoli Illath Krishnan Nambudri 7 M. 3 at p. 10 (F.B.) : 2 Ind. Dec. (N.S.) 588,the validity of a custom of adopting a sister's son among the Nambudri Brahmins of Malabar was recognised.A similar custom has been judicially recognised among the Bohra Brahmins of the northern districts of theNorth-Western Provinces in Chain Sukh Ram v. Parbati 14 A. 53 at. p. 57 : A.W.N. (1891) 222 : 7 Ind.Dec.(N.S.) 406. In Pondicherry a man may adopt his daughter's or sister's son or any one of his wife'srelations, though he may not adopt his own brother (Mayne's Hindu Law, 175). Strange in his Manual ofHindu Law, at page 22, Rule 88, states that the custom of making such adoption (of a daughter's or sister'sson) even without emergency prevails in the Presidency of Madras, the opinion being based on theproceedings of the Sudder Court, dated 4th and 25th June 1836, though in an earlier edition of his book heseems to have thought the custom did not prevail in the northern country (See Exhibit KK 26). TheirLordships of the Madras High Court in Vayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 also referto another case in Strange's Hindu Law, Appendix II, page 100, in which, in the year 1806, it was said that "inpractise the adoption of a sister's son by persons of all castes is not uncommon." It is in reference to that casethat their "Lordships said it was from Cuddapah. In the course of the ruling, their Lordships also refer to theunreported case of Inguva Brahmani v. Venkatalakshmi Ammal between Telugu Brahmins (as the name of the



parties indicate) of Madras (Town) on the Original Side of the High Court, in which the adoption by aBrahmin of a sister's son was upheld. In that case, which was of 1859, evidence had also been given of thepractice amongst Brahmins of making adoptions of daughter's and sister's sons and Pandits also wereexamined as witnesses (pages 50 and 51 of the report). At pages 52 and 53 of the report their Lordships advertto the practice of the adoption of daughter's sons in its relation to the affiliation of Putrika Putra (appointeddaughter's son), recognised by Hindu Law, in these terms:

The practice of making an appointed daughter whose son, if she had one, became the son of the father makingthe appointed daughter, if he had no male issue, was a mode of affiliation prevalent from the earliest time,even before the widow and daughter had a place assigned to them by the Mitakshara in the line of heirs....Whatever doubt we may have as to how far the adoption of a daughter's son is inconsistent with the theory asto the invalidity of the adoption of a son within the prohibited degrees of connection, the usage may still befairly referred to those texts which recognise the practice of (treating a daughter's son heir by appointment, theonly difference being one of form and not of principle, the consent being given in the one case at the time ofmarriage, and in the other at the time of adoption

27. In support of that conclusion, their Lordships also quote with approval a passage from West and Buhler'sDigest of Hindu Law, Volume II, pages 884 to 883. See also Minakshi v. Ramanada 11 M. 49 at p. 56 (F.B.) :11. Ind. Jur. 449 : 4 Ind. Dec. (N.S.) 35 where the adoption of a daughter's son is justified on the old doctrineof Putrika Putro. In the case in Narasammal v. Balaramacharlu 1 M.H.C.R. 420, which was from the GanjamDistrict, the adoption of a sister's son was held to be invalid on the opinion of a Pandit of the NorthernDivision. In that case, no custom was pleaded by the parties and it was in that case that the High Court ruledthat no custom, how long so ever continued, which has never been judicially recognised, can be permitted toprevail against distinct authority (Hindu Law Texts), an opinion which has since been held to be erroneous.

11. It will thus be seen that the custom as to the adoption of a daughter's son is traceable in its origin to the oldHindu Law itself, which recognised the affiliation of an appointed daughter's son though now obsolete. Itcannot, therefore, be seriously doubted that the custom, where it is found to exist, is referable to a legitimatesource, and the authorities cited above establish the existence of the custom not only in the Southern Districtsin this Presidency but also in some of the Andhra tracts like Cuddapah and Madras Town, and generally inother parts of India also.

12. Then, coming to the question of the existence of the alleged custom in the Andhra or Telugu portion ofthis Presidency in particular, the evidence in the case being of a voluminous character, both the parties havefor facility of reference, been permitted to put in printed statements prepared on the basis of the oral anddocumentary evidence bearing on the point. The defendants' statement, which sets forth 65 instances ofadoption relied on for them is marked as "Statement A" and the plaintiff's statement, which analyses the oraland documentary evidence on his side as "Statement B." The instances relied on by the defendants will first betaken up seriatim, and then reference will be made to the rebutting evidence adduced by the plaintiff.

28. [The Court here discussed and considered the effect of 65 specific instances of adoption of daughter's andsister's sons,]

55. With these remarks, I hold that the custom of adopting a daughter's son or sister's son prevails generallyamong the Uriya Brahmins of the Ganjam District and that instances Nos. 44 to 65 adduced by the plaintiffcannot be otherwise than true.

56. In addition to the aforesaid 65 instances of specific cases of adoption, reliance is placed for 2nd defendantalso on two Wills Exhibits 61 and 126 of 1st February 1898 and 24th August 1895, under which one K.Papayya and G. Narasimharao, respectively, gave authority to their wives to adopt a daughter's son. It doesnot appear from the evidence if the power was exercised by either of the women; but the documents are reliedon as indicating the consciousness and conviction of the testators as to the validity of such adoptions.



57. For a similar purpose, reliance is placed for the defence also on the revised decree of the Provincial Courtof Appeal of the Northern Division in Original Suit No. 47 of 1834 filed as Exhibit 131. Somappa, theplaintiff in that case, was the father-in-law of the 1st defendant herein (see the pedigree Exhibit I). That suithaving been brought by him for possession of the plaint estate, his paternal uncles Wumapati, the firstdefendant therein, raised the plea that the plaintiff had been given away in adoption to his maternalgrandmother while an infant. (See page 640 of the printed record). The adoption set up for Wumapati was nodoubt not true; but there remains the fast that such a plea was set up so long ago as 1834 in all seriousness as atenable one, provided it could be established as a fact. It is contended for the defence, and I think not withoutsome reason, that the fact of such a plea being set up indicates the social consciousness of the community atthe time as to such adoptions.

58. Lastly, a judgment of the local Additional Sub-Court in Original Suit No. 40 of 1902 (Exhibit 123) isrelied on for the defence, in which the adoption of a daughter's son among the Vaisyas of Rajahmundry wasrecognised on the authority of Vayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 in the absence ofany evidence adduced by either party.

59. Besides speaking to the specific instances of adoption of a daughter's son or brother's daughter's son or asister's son, many of the defence witnesses also refer in their depositions to other instances within theirknowledge and also to the existence of a custom in regard to such adoptions in general. Their evidence, as awhole, indicates to their belief in the validity of such adoptions on the basis of custom.

60. Then, coming to the rebutting evidence adduced on the plaintiff's behalf, his statement B analyses theevidence under four classes. Class I consists of the evidence of the plaintiff's witnesses that speak to caseswhere a person, having daughter's sons eligible for adoption, adopted a brother's son or a gnati or othersapinda, giving some property to the daughter's sons. The witnesses Nos. 2, 5,15,18,20,21,24, 37, 38 and 41,speak to cases of adoption of brothers' sons, Nos. 1,9,16, 19,22,29, 31, 32, 33, 34 and 36 of adoptions ofsagotras, and the others of adoption of gnatis. Class II consists of cases where a person, having daughter's sonswhom he could have adopted, distributed the property among daughter's sons without adopting any one. ClassIII Consists of cases in which a person appointed one of the daughter's sons to perform his obsequies, etc.,giving him a large portion of his property and giving smaller portions to the other daughter's sons. Some ofthe cases in the said three classes are also supported by documents in reference to the distribution of property.Under class IV is set forth the evidence of plaintiffs' witnesses, some of whom are also Pandits, who state thatthey are not aware of the custom and that the adoption of a daughter's son or sister's son is prohibited by theSastras. Some of them also say that they intended to adopt daughter's sons, but that they adopted others amongtheir sagotras or gnatis, etc., on being told that such adoptions were prohibited by the Sastras, and also on theground that they were not satisfied with the existence of such a custom as would warrant an adoption of thekind (plaintiff witness No. 4).

61. For the plaintiff, reliance is also placed on a case that came up before the District Munsif's Court,Narasapur, in Original Suit No. 102 of 1868, in which the adoption of a sister's son was held to be invalid. Inthat case, the adoption itself was held to be true, though made without the authority of the husband. Thedecision in that case proceeded on the general law as laid down in Narasammal v. Balaramacharlu 1 M.H.C.R.420 and Jivani Bhai v. Javu Bhai 2 M.H.C.P.

462. No custom was pleaded in that case, nor was there any inquiry about the same.

62. In reference to the evidence of plaintiff's witness under classes I to III of his Statement B, it may beobserved that the custom relied on for the defence is not an imperative or obligatory custom binding on thecommunity in general as in the case of inheritance or succession, but only an optional one limited in itsoperation. It is not the defendants' case that every childless man having a daughter's son when making anadoption is bound by the custom to adopt him alone in preference to another, What is claimed for them is onlythat the custom or usage permits the adoption of a daughter's son also at the choice and selection of the



adopter,

63. As to the choice of a boy for adoption according to Sastras and how it has been varied gradually Mr.Mayna in his Hindu Law, observes as follows at page 171:

Hence, in the first place the nearest male sapinda should be selected, if suitable in other respects, and, ifpossible, a brother's son as he was already, in contemplation of law, a son to his uncle. If no such near sapindabe available, then one who is more remote; or in default of such, then one who was of a family whichfollowed the same spiritual guide, or, in the case of Sudras, any member of the caste. Probably, this rule wasstrengthened by the feeling that it was unjust to the members of the family to introduce a stranger if a nearrelative was available. Originally, it seems to have been a precept. Subsequently, it sunk to a mererecommendation. It is now settled that the adoption of a stranger is valid even though relatives otherwisesuitable are in existence.

64. The above being the law as to the selection of a boy in adopter, a childless Hindu may choose to followthe strict letter of the law by adopting a sapinda or sagotra, in the order of preference, or a stranger, or mayadopt a daughter's son according to accepted custom, if one should be in vogue, Adoption itself beingoptional, he may not for reasons of his own, adopt anybody at all, but make an arrangement for distribution ofhis property at his pleasure. That being so, the instances included in classes I to III of plaintiff's statement donot seem to be of any real importance as disproving the custom relied on for the defence.

65. As to the evidence of plaintiff's witnesses under class IV, the persons concerned are apparently followersof the orthodox view, who prefer to act in accordance with the strict letter of the Sastras. The custom relied onin this case being, as already stated, of a restrictive operation it may be that the plaintiff witnesses and otherpersons in the community for the matter of that, may not be directly aware of the existence of the custom,having apparently had no occasion to have knowledge thereof. In the case of a custom, what the law requiresseems to be not that each and every member of the community should have direct knowledge thereof whichcannot be expected in the ordinary course of human conduct especially in regard to a permissive custom, butonly that the persons following it should act, under the conviction that they were acting in accordance with acustom understood to have the force of law and (understood) not to be merely a repeated violation of law, andthat the community coming into contact with such acts should acquiesce therein. According to the case inGopalayyan v. Raghupatiayyan 7 11. H.C.R. 250 at p. 254, already cited, such a conviction or consciousnesshas to be inferred from the acts of the kind, acquiescence in those acts, their publicity and so on. Theacquiescence in such acts would, in general, be, on the part of the members of the community who getcognizance thereof by direct knowledge or information and also on the part of the Government, etc. See ChainSukh Ram v. Parbati 14 A. 53 at. p. 57 : A.W.N. (1891) 222 : 7 Ind. Dec. (N.S.) 406. The case inJugmohandas Mangaldas v. Sir Mangaldas Nathubhoy 10 B. 528 at p. 543 : 5 Ind. Dec. (N.S.) 742, related toan obligatory custom of general application, and is thus dearly distinguishable.

66. The affiliation of a Putrika Putra or appointed daughter's son is as old as Hindu Law, and Recording to theVayidinaia v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427, the practice of the adoption of a daughter's son isreferable to the old doctrine of Putrika Putra, though now obsolete. The custom of such adoptions has been invogue among Brahmins in several parts of this Presidency and elsewhere, as stated already in paragraph 10above; and if Brahmins in the Andhra Districts of the Presidency in practice make such adoptions it cannot bedeemed that they did so without consciousness of the old Hindu Law as to Putrika Putra or of the custom invogue is different parts of the Presidency. No Brahmin with any sense can be expected to go through such aserious act as an adoption for the mere fun of it, unless he be fully conscious of its efficacy; and the AndraBrahmins, as the plaintiffs would have them, must indeed be a peculiar people if they make adoptions withoutsuch consciousness and conviction.

67. As for the acquiescence of the community in such acts, there is a large enough body of evidence on thedefence side to show that such adoptions were made: with due publicity and that they were acquiesced in by



the relations and other members of the public. In some of the instances adduced in the case, the adopter heldmirasi office, to which the adoptee succeeded with the sanction of the Government. The plaintiff's witnessesthemselves do not say that the persons that made adoptions of the kind were ostracized by the society orsubject to other similar inconvenience. The plaintiff's own witness, C. Subbavadhanlu (Exhibit A), who, onhis own showing, is an orthodox man versed in the Sastras and who professes to have declared the invalidityof the adoption proposed to be made by Sivarama Doss of Instance No 5, himself fixed the muhurtham, forthe adoption, graced the ceremony with his presence and took his sambhavana duly. Such conduct on the partof an orthodox Pandit like the witness indicates that persons of his like entertain no particular repugnance orabhorrence in reference to such adoptions, though they may not themselves have recourse to them in their owncase, but prefer to act up to the letter of the Sastras, And, as indicated in the ruling in Vayidinada v. Appu 9M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427, the rebutting evidence in such cases ought to be directed to show "thatthe members of the community declined to recognise sons so adopted as validly adopted, or that the custom isrepugnant to the general sense of the community or that it is regarded as made in violation of law," theexpression "law" used in the ruling being understood to be customary law, since otherwise every customwould in a sense be a violation of the Sastraic injunction. (See Mayne's Hindu Law at pages 56 and 57 quotedin paragraph 7, above). In Basava v. Lingangauda 19 B. 428 at p. 459 : 10 Ind. Dec. (N.S.) 289, his LordshipJustice Ranade says that, "Not a single case was shown on the defendant's behalf where the adoption of anonly son by the Lingayats of these parts was disowned or repudiated by the people or their rulers, native orBritish." In Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshamma 22 M. 398 at p. 421 : 21 A. 460 : 1Bom. L.R. 226 : 3 C.W.N. 427 : 9 M.L.J. 67 : 26 I.A. 113 : 7 Sar. P.C.J. 330 : 8 Ind. Dec. (N.S.) 286 : 9 Ind.Dec. (N.S.) 1001 their Lordships of the Privy Council refer to the absence of resentment on the part of thepeople and of conflict between the decided law (customary) and the feeling of the people, in upholding thevalidity of the adoption of an only son. In the present suit, it is not shown for the plaintiff that the adoptedsons were disowned by the community or that the custom is repugnant to the general sense of the communityor that the community feels any resentment in such matters. It is not also shown that the adoptions areregarded by the community in general as violations of the (customary) law, though they may not be inaccordance with the letter of the Sastras. As put by the plaintiff's own witness Dasaradha Padi, (ExhibitHH-2), such adoptions would seem to be regarded merely as Gounapakhsham (secondary), while adoptionsmade in accordance with the Sastras are deemed Mukhyapaksham (principal or primary).

68. Thus, the rebutting evidence adduced for the plaintiff as a whole does not seem to be of materialconsequence.

69. Of the 65 instances of adoptions for the defence, 46 are of daughters' sons (1 to 9, 11 to 16, 18 to 23, 25 to35, 39 to 41, 43, 46, 48, 49, 54, 55, 57, 60, 62, 64 and 95), 6 of a brother's daughter's son (10, 17, 24, 37, 38and 42) and the remaining 13 are of sister's son. Of these instances, 28 are from the Ganjam District, 9 fromthe Godavari District, 20 from Kistna, 7 from Guntur and one from Nellore. Of the 28 instances from Ganjam,22 (44 to 65) relate to Uriya-Brahmins; and of the rest, 6 (Nos. 9, 15 16, 23, 29, and 41) to VaishnavaBrahmins living in the other districts. Of the total instances, 10 instances (Nos. 14, 19, 20, 25 to 30 and 43)being held as not properly established, there yet remain 55 instances. Of these, 5 relate to Vishnavites and 22to Uriya Brahmins and 23 to Andhra Brahmins. Besides these, there are also the Brahmins two Wills (Exhibits61 and 126) under which Andhra Brahmins authorised their wives to adopt their daughters' sons.

70. As to the instances from the Uriya Brahmins and the Vaishnavites the plaintiff's contention is that they arenot relevant at all in reference to a custom among the Andhra Brahmins. It is no doubt true that the UriyaBrahmins come among the Pancha Goudas following the Bengal School of law and are given to animal food,and some of them (the Holuvas), who follow agriculture as a profession (Exhibit 138-t), are rather lax in theirreligious observances but, as spoken to by the plaintiff's witness, Dasaradha Padi, the law as to marriage andadoption is the same to the Uriya, Brahmins and the Andhra Brahmins. His evidence on the point is asfollows:



We observe only Karmas in keeping with the Vedas. Yagnavalkya and Mitakshara are our Dharma Sastras.The Sruthi relating to adoption is one and the same for us and the Andhras. * * * We do not marry girls whohave already attained puberty. * * * Widow marriage is not in vogue among us. * * * The duties laid down inthe Vedas are observed in one and the same manner by all Brahmins.

29. In view of this evidence, it does not appear that there are any essential differences in law as to marriage oradoption between the Uriya Brahmins and the Andhra Brahmins Further, the Uriyas have been residing inclose proximity with the Andhras of Ganjam for several generations, so that there would seem to be no seriousobjection to the Uriya instances also being taken into consideration in this case in view of the scope of theissue as settled. Further evidence in regard to such instances having been ruled out by the learned SubordinateJudge, Cocanada, in his judgment in the previous litigation between the parties (Exhibit GG), their Lordshipsof the High Court in their appeal judgment (.Exhibit 122) were of the opinion that such evidence was relevantand should be obtained. And, when, in their Lordships' opinion, the evidence of the Uriya witnesses wasrelevant, a similar principle must apply to the Vaishnava cases, as well.

71. Even if the Uriya and Vaishnavite instances objected to for the plaintiff be excluded, there would still be23 instances relating to Andhras. With these must be remembered the two cases of sister's son's adoption fromCuddapah and Madras Town referred to in Vayidinda v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 asaccepted by the Courts in 1806 and 1859 (see paragraph 10 above). The instances under notice cover a periodof over 80 years from 1832 and come from four of the principal Andhra Districts. It is not to be supposed thatthe defence in the present case has been able to exhaust all cases of such adoptions in the Telugu country andthe custom set up being itself of a limited operation, the absence of a larger number of instances placed beforethe Court may not be deemed to be a serious defect. In reference to a similar matter his Lordship JusticeRanade observes thus in Basava v. Lingangauda 19 B. 428 at p. 459 : 10 Ind. Dec. (N.S.) 289:

Of course it has never been contended that every person adopting a child was bound to adopt an only son.Cases of adoptions of one, out of many sons will naturally be more numerous. But this preponderance byitself will not invalidate the adoptions of only sons when the custom was properly proved.

30. These remarks apply quite well to the present case also.

72. The custom in the present case has been shown to have been in vogue for 80 years; and, according to theruling in Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 42 C. 455 at p. 472 : 19 C.W.N. 208 : 20 C.L.J.183, evidence showing the exercise of a right in accordance with an alleged custom as far back as livingmemory can go, raises the presumption, though a rebuttable presumption, as to the immemorial existence ofthe custom. The custom set up in this case being according to the 9 Madras case Vagidinada v. Appu 9 M. 44(F.B.) : 3 Ind. Dec. (N.S.) 427 referable to the affiliation of appointed daughter's son recognised by the oldHindu Law, it may be taken to have been in vogue among Brahmins in general from time immemorial. Thereis also a text of Yama, quoted in Ghose's Hindu Law, 3rd Edition, Volume 1, pages 683 and 755, which saysthat in adopting the daughter's son and the brother's son no ceremonies are required.

73. In view of the foregoing, the custom relied on in the present case must be held to be an ancient one. So faras the limited character of the custom under notice admit?, the evidence also establishes the generaluniformity and continuity of the custom. The various instances adduced in the case and the generalacquiescence therein by the community without feeling any repugnance or resentment over the same, alsoindicates a conviction on the part of those following it that they have been acting on accordance with acustomary law binding on them. The evidence on record, so far as it goes, must also be held to be clear andunambiguous; and it is not the plaintiff's case that the custom is immoral or opposed to public policy.

74. I accordingly hold on the 10th issue that the custom of adopting a daughter's son or a sister's son obtainsamong Brahmins of the Andhra or Telugu portion as in the rest of the Madras Presidency.



75. 12th issue: The allegation in paragraph 6 of the plaint is to the effect that, after the birth of the plaintiff, inor about July 1877, the first defendant recognised him as heir to the estate entitled to succeed on her death,ceased to perform the annual and other ceremonies of her husband and appointed plaintiff to perform all suchceremonies in his own right.

76. In reference to this alligator, there is no direct evidence to show that first defendant specifically recognisedplaintiff as heir to the estate on her death, The deposition of the defendants' own witness, N. Krishnayya(Exhibit A--68), the family purohit of the first defendant, however, shows that the mahalayams and annualceremonies of first defendant's husband were being performed on the karthayam of the plaintiff even prior tothe first adoption of the second defendant in 1900. The evidence of the witness on the point clearly goes incorroboration of the testimony of the plaintiff's father (Exhibit A-63) and his deceased maternal aunt'shusband (Exhibit A 86) that the transfer of the karthavyam to plaintiff's name in regard to the ceremonies offirst defendant's husband took place soon after plaintiff's birth in 1677. It must, therefore be held that thecircumstances alleged in paragraph 6 of the plaint as to transfer of the karthavyam are true.

77. Next, as to the effect of such transfer, the first defendant, as widow of the deceased, was bound to performthe ceremonies of her husband on her own karthavyam, and any transfer of karthavyam to another personwould be invalid according to Sastra-unless it be to a person validly adopted by her. If she purported totransfer the karthavyam to any other, her act would amount to a mere delegation of her power and can have nobinding effect either on her or her adoptive son. The transfer of karthavyam to plaintiff after his birth no doubtshows that the lady had then no idea of taking any body in adoption; but I do not think her then conduct in thematter debars her for ever from changing her mind and making an adoption later on, if she has otherwiseauthority for so acting.

73. With these remarks, I hold on the 12th issue, that the circumstances set forth in paragraph 6 of the plaintare substantially true, but that they cannot render second defendant's adoption invalid, if it should be held tobe otherwise valid.

79. 13th issue: The plaint estate of Vegayammapeta is included in the Schedule appended to the MadrasImpartible Estates Act (II of 1904), and as such the succession to the estate will be by the rule ofprimogeniture. The custom of lineal primogeniture as applying to the estate was set up by first defendant'sfather in-law, Somappa (II), as against his paternal uncle, Wumapati, and he succeeded in establishing thesame in Original Suit No. 47 of 1834, on the file of the Principal Court of Appeal for the Northern Division.See the revised decree of the Court, Exhibit l(sic), and the pedigree, (Exhibit I). In a subsequent litigationbrought against the first defendant by agnati of her husband after the latter's death, Original Suit No. 5 of 1876on the file of the Sub-Court, Cocanada, their Lordships of the Privy Council say in their judgment, ExhibitMM-1, that it was not disputed before them in that case that the Zemindari, according to an ancient custom,was impartible and that it had been held and enjoyed by the eldest male member in the direct line up to andinclusive of Somappa (I), the grandfather of first defendant's father-in-law, Somappa (II). In that litigation,and in the course of an intermediate litigation between first defendant's husband and a widoweddaughter-in-law of his paternal grand-uncle in 1834, the first defendant and her late husband no doubt reliedon a family arrangement, under which the estate was assigned to his father and also succeeded in their plea;but that cannot affect the custom of lineal primogeniture in reference to the estate which his father hadsucceeded in establishing in the earliest litigation, especially when the family arrangement itself proceeded inaccordance with the pre-existing custom. Their Lordships of the Privy Council in the suit of 1873 advert to thedecision of the Provincial Court with approval so far as it went; and all that they say in the penultimateparagraph of their judgment, Exhibit M.M-1, is that it was immaterial for the purpose of the litigation beforethem to decide who would have been entitled to succeed under the custom if the estate had remained part ofthe joint family property.

80. I, therefore, find on the 13th issue that the succession to the plaint estate is governed by the rule of linealprimogeniture. It must, however, be observed that a decision on this issue is not quite important for the



purpose of this suit since, barring second defendant's adoption, the plaintiff would be the heir, whether theordinary or lineal rule of primogeniture governs the succession.

81. 16th issue: Clause 3 of Section 4 of the Madras Impartible Estates Act (II of 1904) provides in expressterms that nothing in that section shall be construed to restrict the power of the owner of an impartible estateto provide for the succession thereto in default of heirs. The first Clause of the section prohibits an alienationof the estate except under certain circumstances; but it does not prohibit the creation of an heir by adoptionaccording to the Hindu Law. Such adoptions can be made under law not only by a male owner but also by hiswidow with his authority or with the assent of sapindas. It is no doubt contended for the plaintiff that anadoption by a widow, when it is made with the assent of sapindas is a sort of alienation; but I feel unable toaccept the position that an adoption of the kind can be held to be the equivalent to an alienation.

82. I accordingly find on the 16th issue that the adoption in dispute is not contrary to the provisions of theImpartible Estate's Act,

31. This appeal coming on for final hearing on the 19th April 1920, after the return of the finding of the lowerCourt upon the issues referred by this Court for trial, and the case having stood over for consideration till thisday, the Court delivered the following

Judgment

32. No objection has been taken before us to the findings on issues Nos. 12, 13 and 16, which are againstplaintiff, or to the finding on issue No. 9 in his favour that the adoption of a daughter's son is invalid underHindu Law. Argument has been confined to the finding on issue No. 10 that custom authorizes such anadoption among Telugu Brahmins such as the parties, We concur in that finding and in the lower Court'sreasons for it and, therefore deal shortly with the objections advanced here against it,

33. The Telugu country begins, roughly, north of the City of Madras, being bounded on the south by theTamil Districts and on the north by the Uriya, though there is, particularly in the case of the latter, no sharpdivision. The materials before the lower Court consisted, firstly, in general evidence on the side of plaintiff,that such adoptions were not recognised as valid by Telugu and Uriya Brahmins, secondly, on the side ofsecond defendant in evidence, that they had taken place in a sufficient number of instances in the Telugu andUriya country to establish a custom.

34. The general evidence consisted in a number of statements, Exhibit HH series. But it was inconclusive inthe case of two witnesses, who merely said that the adoption of a sister's son was avoided in their families onoccasions on which it would have been possible, as contrary to law and custom. In other cases it consistedonly in assertions by persons described as Pandits, who, if their competence in this branch of knowledge ispresumed, would ordinarily be prone to depreciate any preference for custom over adherence to theinjunctions of the texts, by the study of which they live. In fact, some of them, Dasaradha Padhi, AppannaSastri, Lokhanada Misra and Ananta Doss, mentioned instances of the adoption of a sister's son withoutreferring to any consequent social or religious stigma being imposed. Nothing of any value was established bythese witnesses.

35. The lower Court has dealt with the evidence relating to the instances relied on by second defendant withgreat caution and no objection has been taken to its conclusion that twenty-seven cases of adoption of adaughter's son in the Telugu Districts have been proved. It is said that some of these cases are inconclusive,because they are recent. But the proportion of recent cases is not unduly high in view of the greater care withwhich evidence relating to them would be obtainable; and there is no suggestion that in any the adoption wasmade to create evidence for this trial. It is pointed out next that in some cases there was, besides the adoption,a document transferring property to the adopted son consistently with the existence of doubt as to his position.But it is possible that this was due to a desire to prevent future litigation and this is probable in at least three



cases, in which the adoptive fathers were persons of marked respectability, a member of the LegislativeCouncil, a well-known Vakil, and a person on whom Government had conferred the title of Diwan Bahadur.Then it is argued that some, who speak to these adoptions, describe them as authorized by law, not custom.But these descriptions are so plainly wrong and the competence of those concerned to give them so small, thatthey may safely be ascribed to a natural and very ordinary desire to make no explicit innovation and to theirinability as laymen to draw a legal distinction. Lastly, in six cases there is the objection that the families inquestion are those of Tamil immigrants in Telugu country and that, as they have brought their Tamil customswith them, their adoptions add nothing to the argument from the instances afforded by Telugu families proper.It does not, however, appear from the evidence that in any case the immigration was recent or that theadoptions in question were regarded with dislike or suspicion in their Telugu surroundings. Such a customwould be followed only at long intervals and on rare occasions. There is, therefore, no sufficient reason fordiscarding these six cases from consideration.

36. Argument has next been directed against the relevancy and weight of the remaining twenty-two instancesrelied on, on the ground that they occurred not in Telugu, but in Uriya families; and a similar argument hasbeen attempted against the relevancy of the fact that adoptions of a daughter's son were held to be authorisedby custom in the Tamil districts in Vayidinada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.)

427. The exhaustive judgment in, that case no doubt dealt statedly only with the southern districts; andreference has also been made to the fact that it was to some extent, founded on the commentary ofVydianadha Dikshitar, a work alleged to be authoritative only in them. But there is no reason for supposingthat the scope of the decision was limited to the southern districts for any reason but that the case before theCourt came from Tanjore and there had naturally to be some limit to the collection of instances in support ofthe custom relied on; the argument from the reference to Vydianatha Dikshitar is answered by the observationthat his commentary was afterwards treated as authoritative in Brindavana v. Radhamani 12 M. 72 : 4 Ind.Dec. (N.S.) 399, a case from Ganjam, a Telugu and Uriya district; and in fact in Vayidinada v. Appu 9 M. 44(F.B.) : 3 Ind. Dec. (N.S.) 427 one instance relied on was from another Telugu district, Cuddapah. As regardsthe Uriya instances before us, there is nothing to support a distinction between the custom they support andthat of the Telugu country. It has been pointed out that the territorial division between Telugus and Uriyas isparticularly indefinite. The witnesses for plaintiff, of whom Dasaradhi Padhi, already referred to, is theclearest, refer only to differences in ritual, to marriage with maternal uncle's daughter and to fish diet aspeculiar to Uriyas, not to anything of significance in the present connection. Although Tamil, Telugu andUriya Brahmins differ in language and residence, all alike, so far as we have been shown, agree in acceptanceof Hinduism and of the Mitakshara Law; and we can see no reason why the judicial recognition inVayidinadha v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 of the custom now in issue as binding on the firstmentioned and the evidence of instances in which it has been followed among the last, are not relevant and arenot of material weight.

37. It remains to refer to six instances of adoption of a brother's daughter's son, which have also been proved.We need say only that the validity of such adoptions was regarded as standing on the same footing as that ofadoptions of a daughter's son in Vayidianada v. Appu 9 M. 44 (F.B.) : 3 Ind. Dec. (N.S.) 427 and that in boththe natural mother would be equally debarred from marriage with the adoptive father.

38. We, therefore, accept all the fifty five instances, which the lower Court held to be established, as relevantand, in the absence of anything to rebut the inference from them, we regard them as sufficient to prove thecustom alleged, It should be added that this conclusion is in accordance with the opinion in placitum 88,Strange's Manual of Hindu Law, 2nd Edition, page 22, the learned author abandoning therein the limitation toSouth India, expressed in placitum 92 of the First Edition of his work, page 17, and referring to a proceedingof the Sudder Court as his authority. We accept the lower Court's finding and, therefore, we allow the appeal,dismissing the suit with costs throughout.



Documents

Sri Vadrevu Ranganayakamma Garu ... vs Ryali Somasundara Rao on 29 April, 1920