JUDGMENT Spencer, J.
1. I have had the advantage of seeing the judgment which my learned brother is about to deliver. On the questions of fact I have nothing to add to what he will state beyond expressing my entire agreement with his conclusions. On the two questions of law arising out of the 5th and 6th points I wish to express my concurrence with his opinion. His opinion on the 5th point agrees also with that of Ramesam, J., in Anne Brahmayya v. Chelasami Rattayya (1922) 20 L.W. 503. I agree with them in respectfully dissenting from the view expressed by Oldfield, J., in Viswasundara Rao v. Somasundara Rao (1920) I.L.R. 43 M. 876 to the effect that the class of sapindas, whose consent should be obtained by a widow in order to supply the authority lacking in consequence of her husband having died without authorising her to adopt a son, is limited to agnates. In the judgment of Seshagiri Aiyar, J., in Kristnayya v. Lakshmipathi (1920) I.L.R. 43 M. 650 : 30 M.L.J. 265 (P.C.) the Smrithi of Yajnavalkya, which is the basis for the theory that a woman, who has no husband, father or sons, needs the advice of those who are her natural protectors, is quoted.
2. Let her father protect a maiden, her lord a married woman, sons in old age; if none of these, other gnatis; she is not fit for independence.
Here the word used is "gnatis."
3. But temporal considerations cannot be left out of account. Proximity to the deceased with respect to rights of property is also an important factor in considering who should be consulted, for the reason that those persons who would succeed to the property, if no adoption were made, are most interested in the protection of the inheritance and in restraining the widow concerned from acting capriciously (vide Sri Raghu-nadha v. Sri Brozo Kishoro (1876) L.R. 3 I.A. 154 : I.L.R. 1 M. 69 (P.C.) and Veera Basavaraju v. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265 : I.L.R. 41 M. 998 (1004) : 36 M.L.J. 40(42) (P.C.). As regards the devolution of property the original text of Manu is.
(Manu IX. 187) which may be translated literally:
Whoever is unremote from the sapinda to him let his wealth belong.
The word used here is " sapinda".
4. Now neither the word ' gnati ' nor the word ' sapinda ' is synonymous with the English word " agnate", whatever may be the suggestion conveyed by the common root " gna". For sapindas undoubtedly include bhinnagotra sapindas who are cognates, and in Professor Monier William's Dictionary "gnati " is defined as a " paternal relation, a kinsman in general, a father, a brother, a distant kinsman, one who does not participate in the oblations offered to deceased ancestors (according to the School, gnatis is a paternal and sambhandh in maternal relation; the original meaning of gnati may Be 'intimately acquainted'). Cf. Greek (Gustoo Gnotee).
5. I am satisfied that in the passage where Mr. Ameer Ali observed in Veera Basavaraju v. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265 : I.L.R. 41 M. 998 (1004) : 36 M.L.J. 40(42) (P.C.) " The Ramnad case established the proposition that in the Dravida country under the Dravidian branch of the Mitak shara Law there is force in the absence of authority from her deceased husband, a widow may adopt a son with the assent of his male agnates", and in the other passage in Krist-nayya v. Lakshmipathi (1920) I.L.R. 43 M. 650 : 30 M.L.J. 265(P.C.) where Viscount Cave observed at p. 654: " The consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the matter", their Lordships had no intention of laying down the propositions (1914) 20 L.W. 503 that in the absence of agnates available for being consulted no adoption could be made by a widow who had failed to obtain the authority of her husband, and (1920) I.L.R. 43 M. 876 that in no circumstances should cognates be consulted. No doubt agnates should as a rule be consulted first, if there are agnates, because the principal agnates are che nearest kinsmen but there appears to be no authority, for limiting the class of gnatis and sapindas, whose assent may be taken by a widow about to adopt a son, to agnates, except the judgments of my learned brothers Oldfield and Phillips, JJ., in Viswasundara Rao v. Somasundara Rao (1920) I.L.R. 43 M. 876 and of Jackson, J. in Anne Brahmayya v. Chelasami Rattayya (1914) 20 L.W. 503 and I unable to regard the reasons given by them for excluding a daughter's son as convincing and well founded.
6. Now leaving the 5th point and turning to the 6th point, I find from the pedigree that Kesar Singh is the father's sister's son's daughter's son of Ananta Ram Singh, the propositus, and that Ananta Ram Singh, the propositus, is the mother's father's mother's brother's son of the claimant Kesar Singh. In other words, Kesar Singh is towards Ananta Ram Singh in Class III of the matri bandhus Group VI (d) mother's pitri bandhus; and Ananta Ram Singh is as regards Kesar Singh in Class III of matri bandhus Group VI (d) mother's father's own bandhus in the tables of heritable bandhus accompanying the article by Mr. Ganapathi Aiyar at 9 M.L.J. 59 quoted by the Subordinate Judge in paragraph 44 of his judgment. They are also both within 5 degrees of the common ancestor Dhan Singh alias Kern Singh. In the genealogical table at p. 785 of Mayne's 7th Edition of Hindu Law the owner's paternal aunt's son's daughter's son is shown as a heritable bandhu and the authority for his right is quoted in the footnote as Parot Bapa Lal Sevakram v. Mehta Harilal Surajram (1894) I.L.R. 19B. 631 but the decision appears to decide the right of inheritance of a paternal aunt's daughter's son, not that of a paternal aunt's son's daughter's son. In the present case the claimant is one more degree removed from the propositus, and the two females who intervene in the line of descent have a male intervening between them instead of being successive.
7. Parot Bapa Lal Sevakram v. Mehta Harilal Surajram (1894) I.L.R. 19B. 631 purports to follow the Full Bench case of Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) which was also followed by a Bench of the same Court in Babu Lal v. Nanku Ram (1894) I.L.R. 22C. 339 and is quoted with approval in the Privy Council decision in Ramchandra Martand Waiker v. Vinayak Venkatesh Kothekar (1914) I.L.R. 43C. 384 : 27 M.L.J. 333(P.C.) but is stated by Sadasiva Aiyar, J., in Chinna Pichu Aiyangar v. Padmanabha Aiyangar (1920) I.L.R. 44M. 121 : 39 M.L.J. 417 to contain a fallacious conclusion. The defendant in Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) was in the same degree of relationship to the propositus as E was to B in the table at p. 128. It was unnecessary for the purpose of that case to decide whether E's son F was a sapinda of B. The learned Judges observed that F was within six degrees from the common ancestor. He was actually 5th in descent from A, and the Acharakanda declares that sapinda relationship ceases only after the 5th ancestor on the mother's side in the mother's line and after the 7th ancestor on the father's side in the father's line, calculating from whence the direction of the line changes. So the statement as to B and F not being sapindas to each other was an obiter dictum and the reference to six degrees is not intelligible. The Sanskrit word for 'line' in verse 53 of the Acharakanda quoted in West and Buhler at pp. 174-175 (125-126 Cal.) is "santana" which which means "extending, spreading, lineage, race, family, progeny, offspring, a son or daughter". It does not appear to denote male ancestors and male descendants exclusively. In Golap Chandra Sarkar's Hindu Law, 5th Edition, p. 98, the learned author observes that each link is called a purusha which means "a generation, a person, a man" but that is not the word used in this text. He also observes that recent commentators confine the upward lines to male ancestors only, although the downward lines according to them may pass through males or females, or either, and that no reason is assigned by them for this distinction. He comments on the "fact that the Mitakshara does not say anything about the lines passing through males only, or through both males and females without any distinction, and he thinks that the novel views which were propounded for the first time by the Tagore Law Lecturer of 1880 were embodied in the judgment of Full Bench in Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) and that they are peculiar to Professor Sar-vadhikari and unsupported by authority.
8. The Tagore Law Lecturer for 1883, Dr. Jolly, criticised Professor Sarvadhikari's theory in these words at p. 216:"An essentially new system of bandhu relationship under Mitak-shara Law has been recently proposed by Rajkumar Sarvadhi-kari. He takes the three bandhus each as indicative of the three principal classes of bandhus and not as embracing the nine bandhus specially named only. This theory has the advantage of giving a clue to the order of precedence among the bandhus. However though it is developed with rigorous logic from the date put: forth by its author, there is no sufficient foundation for these data in the Mitakshara to commend its ready acceptance." Some general remarks on the subject of female succession follow.
9. Professor Sarvadhikari enunciates the proposition that in the case of bandhus on the paternal side there cannot be more than two females between the claimant and the proposi-tus and that if there are two females, these two must be related as mother and daughter to each other. But the text of the writings of the ancient expounders of Hindu Law does not warrant the restriction of heritable cognates to those in. the father's agnate line and the mother's agnate line. Supposing that is the correct interpretation to be placed on the passage from the Acharakanda to which I have referred above, the logical result would be to allow the intervention of no more than one female, and two females should not be allowed to intervene even though they may be related as mother and daughter.
10. Adit Narayan Singh v. Mahabir Prasad Tiwari (1921) L.R. 48 I.A. 86 : 40 M.L.J. 270 (P.C.) is a case in point. The suit of the purchasers of the estate of one Hanuman, who was a matri bandhu (mother's paternal aunt's son) of the propositus, failed in the Privy Council because of the existence of a mother's sister's grandson (an atma bandhu) named Rajendra.
11. It was not considered by the Judicial Committee to be an objection to Rajendra's title that two females intervened between Rajendra and the propositus Dhanukdari even though those two females were not related as mother and daughter but as sisters. In the case before us two females intervene between Kesar Singh and Ananta Ram Singh, viz., Ganga Bai and Ammir Bai, who are related to the claimant as mother and maternal great-grandmother respectively, and a male, viz., Jagannatha Singh, who is Kesar Singh's maternal grandfather, intervenes between them. In Adit Narayan Singh v. Mahabir Prasad Tiwari (1921) L.R. 48 I.A. 86 : 40 M.L.J. 270 (P.C.) the principle is once more recognised that the enumeration of bandhus as heirs in the Mitakshara is illustrative and not exhaustive. This is sufficiently evident from the fact that such obvious heirs as a sister's son and a maternal uncle are not specially mentioned although the maternal uncle's sons are among the cognate kindred enumerated in the text of Chap. II, Section 6, p. 11. This principle was established in Muthuswami Mudaliar v. Sunambedu Muthukumaraswami Mudaliar (1896) L.R. 23 I.A. 83 : 6 M.L.J. 113 (P.C.). In Krishna Aiyangar v. Venkatarama Aiyangar (1905) I.L.R. 29M. 115 quoted by the Judicial Committee in Adit Narayan Singh v. Mahabir Prasad Tiwari (1921) L.R. 48 I.A. 86 : 40 M.L.J. 270 (P.C.) the suggestion is thrown out that a party who is able to trace his descent with a lesser intervention of females than another might claim to be preferred, but it is not stated that two females are the limit, or that if there are two, they must come one after the other as mother and daughter. The question was left open whether a preponderating male element in the lines of ancestors should prevail and the case was decided by giving preference to an atma bandhu over a pitri bandhu on the principle that the nearer line excludes the more remote. The same suggestion occurs again in Tirumalachariar v. Andal Ammal (1907) I.L.R. 30 M. 406 : 17 M.L.J. 285.
12. I have mentioned that among modern writers Sarkar does not adopt the views enunciated by Professor Sarvadhi-kari. Ghose also considers that the mode of computation from the propositus up to the common ancestor and then down to the claimant advocated by Professor Sarvadhikari is opposed to all the Hindu Lawyers and to the express words of the Mitakshara and he says at p. 146 of his principles of Hindu Law (3rd Edition) that the rule laid down in Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) has not been followed in later cases in the same Court and in the High Courts of Madras, Allahabad and Patna and he cites several instances of bandhus whose claims as heirs have been recognised even though more than one female intervened in the line between them and the propositus including the case of Babu Lal v. Nanku Ram (1894) I.L.R. 23C. 339 On the other hand Mr. Banerjee appears to range himself on the side of Sarvadhikari (see p. 68, Banerjee's Hindu Law of Marriage and Stridhana where the learned author says that a line of female ancestors is not regarded as a line in Hindu Law). Ramesam, J., in Rami Reddi v. Gangi Reddi (1924) I.L.R. 48 M. 732 at 724 notices that some of Professor Sarvadhikari's views on priority of succession based on separation into four families have not been accepted by the Judicial Committee.
13. It has been long settled that succession under the Mitak-shara Law depends upon propinquity and not upon religious efficacy, which is one reason for not excluding cognates who trace their relationship through one or more females.
14. But there are two known tests of capacity for inheriting among bandhus which must be satisfied, and these are (1) sapinda relationship ceases, in the case of bhinnagotra sapindas or bandhus after the 5th degree from the common ancestor when the descent is through a female and after the 7th degree from the common ancestor when the descent is through a male, and (2) there must be an element of mutuality between the claimant and the propositus; in other words, they must be so related that they are sapindas of each other.
15. Both these tests have been referred to in the most instructive case of Ramchandra Martand Waiker v. Vinayak Venkatesh Kothekar (1914) I.L.R. 42 C. 384 (385) : 27 M.L.J. 333 (P.C.). There the plaintiffs were Laxman Rao's paternal grandfather's son's son's daughter's daughter's sons. As they claimed through a female and as the common ancestor Timaji was more than 5 degrees removed from the plaintiffs, Timaji was not a sapinda of plaintiffs. It followed therefore that that Timaji's descendants among whom was the propositus Laxman Rao were not sapindas of plaintiffs and thus plaintiffs' claim failed, although the plaintiffs were sapindas of Laxman Rao, whose descent from the common ancestor Timaji was through males, as Laxman Rao could count seven degrees from the common ancestor in enumerating his sapindas. The principle is that when a man computes his relations (sapindas) through his father he has a wider range (7 degrees) than when he computes his relations through his mother, and those relations of his who are connected with him through their mothers have a smaller range (5 degrees) and will only include him among their sapindas if he comes within that limit. Applying this test to the pedigree in the present case we find that Dhan Singh alias Kem Singh, the common ancestor, is within 5 degrees of Kesar Singh, who claims relationship to Anantaram Singh through his mother, and that Anantaram Singh who was related to Kesar Singh through his father, Mohan Singh, is easily within 7 degrees of the common ancestor Dhan Singh. The plaint pedigree unnecessarily shows Bagirath Singh, the father of Dhan Singh, but he need not be reckoned in the counting which starts from the common ancestor. For these reasons I agree with my learned brother that the appeal must be allowed with costs of the appellant here and in the Lower Court and the plaintiff's suit is dismissed.
16. In view of the special difficulty and importance of this case we allow a Vakil's fee of Rs. 2,500 in this Court.
17. Under Order 33, Rule 10, Civil Procedure Code, the Court-fee payable on the appeal may be recovered from the pauper appellant, either by deducting the same from the costs awarded to him and paying him the balance, or otherwise from his properties.
Venkatasubba Rao, J.
18. The Government claim the suit properties on the ground of escheat. They originally belonged to Kurnool Anantaram Singh who died about 1864 or 1865 and on his death his inheritance devolved on his widow Ramabai. Kesar Singh, who is referred to as the 2nd defendant, resists the suit of the Government on the ground inter alia that he was adopted by Ramabai in the year 1900 and that his adoption was recognised and acted upon till her death in September, 1915. The estate was also claimed by one Nuz-wid Anantaram Singh who alleged that he was the heir entitled to the property after the widow's death. He also filed a suit and Kesar Singh was the principal defendant. There was thus a three-cornered contest, the claimants being the Government, Nuzwid Anantaram Singh and Kesar Singh. It is necessary to mention in this connection that in 1895. a suit O.S. No. 2 of 1875 was filed against Ramabai by certain persons who claimed to be the nearest reversioners of Anantaram Singh. Four plaintiffs instituted that suit, the object of which was, to have certain alienations made by Ramabai declared invalid. Lakshmana Singh, P.W. 1 and Umrao Singh, P.W. 2, are two out of the said four plaintiffs. That suit was dismissed as it was found that the claimants were not the reversioners. Nuzwid Anantaram Singh now put forward in the Lower Court the same pedigree as the plaintiffs in the suit of 1895 relied on and he claimed to be related to the last male owner in precisely the same manner as those plaintiffs claimed they were related. He availed himself of the fact that he was not made a party to the previous suit and sought to rely upon the pedigree which was held to be false in that litigation. The two suits, that of the Government and that of Nuy.wid Anantaram Singh, were tried together by the Lower Court and the claim of Nuzwid Anantaram Singh was rejected and that of the Government allowed. There is no appeal by Nuzwid Anantaram Singh and therefore the decree passed against him has become final. Kesar Singh has filed the present appeal and the contest in this Court is therefore confined to Kesar Singh and the Government.
19. Kesar Singh pleaded that Ramabai adopted him and he therefore became entitled to the estate. The Government denied the factum of adoption as well as its validity. For the defence it was alleged that Ramabai had the authority of her husband to adopt and in any event the adoption was made with the consent of her husband's nearest kinsman Jagannath Singh. The Lower Court found in favour of the factum of adoption but held that the consent neither of the husband nor of the kinsman was proved. Another ground taken by Kesar Singh, was, that the suit of the Government was bound to fail as there was in any event an heir of Anantaram Singh in existence. The Subordinate Judge has found on this point in favour of the Government. The third ground of defence was, that Kesar Singh apart from this adoption was entitled to the property being a heritable bandhu of the late Anantaram Singh. On this point again the finding of the Subordinate Judge is against the defendant.
Six points arise for decision:
1. Did Anantaram Singh have no heirs and did the property therefore escheat to the Government?
2. Was the adoption in fact made?
3. Did the widow have her husband's authority or consent to make the adoption?
4. Did Jagannadha consent to the adoption?
5. Is his consent sufficient in law to validate the adoption?
6. Is the 2nd defendant a heritable bandhu of Anantaram Singh?
Point No. 1.-The first point 1 proceed to consider is, whether it has been made out that there was an entire absence of heirs, which alone would render the property escheat to the Government. The 2nd defendant Kesar Singh claims that he is the nearest heir. But for the present I shall assume that he has not made out his title. The question still remains, was there an heir to Anantaram Singh in existence and does the claim of the Government on that account fail? On behalf of the defence one Beecum Singh has been put forward as the heir of the deceased, barring the 2nd defendant. If the relationship alleged between Beecum Singh and Anantaram Singh is true, it is not disputed that Beecum Singh would be a heritable bandhu and would thus exclude the Government. The relationship of Beecum Singh as gathered from the evidence may be set forth in the following pedigree:
Dhan Singh Brij Kishore or | Kem Singh Narasinga Bhan | | | ___________________________ | | | | Mohan Singh married Venkubai Gangabai m. Laksh Kuvar Singh | mana Singh | Anantaram Singh, m. | Manna Bai Lokman Singh | Bikkam Singh m. Rupa Bhai | Chanda Bai The learned Judge then discusses the evidence and concludes:
The evidence points irresistibly to the conclusion that there was in existence an heir of Anantaram Singh, namely Beecum Singh, whose existence puts the Government out of Court. It is unfortunate that in this long and important trial such an obvious point was overlooked. I cannot also help noticing the strange course the Government took for establishing the absence of heirs: They chose to examine, in order to prove that there was no heir, two persons who had themselves claimed to be the heirs and who in the witness box reiterated that claim.
Point No. 2-Was the adoption in fact made? The learned Subordinate Judge has found in favour of the factum of adoption.
The learned Judge here discusses the evidence on the point and concludes:
On my finding on this point the suit of the Government fails. I shall, however, proceed to consider the other points involved in the case. I am not therefore prepared to disturb the finding of the Lower Court that the adoption did in fact take place.
Point No. 3 -Did Anantaram Singh authorise his wife to make an adoption?
[The learned Judges then discussed the evidence] and concludes:
My conclusion on this point is that it has not been proved that Anantaram Singh authorised the adoption.
Point No. 4 Did Jagannath Singh consent to the adoption?
The Judge after discussing the evidence on the point thus concludes:
I am quite aware that from the mere fact that Jagannatha took part in the adoption, it cannot be inferred either that he supposed that he was giving the consent or that there was on his part such exercise of discretion as would render the consent effectual. See Raghunadha v. Sri Brozo Kishoro (1876) L.R. 3 I.A. 154 : I.L.R. 1 M. 69 (P.C.). But what I desire to say is, that the Judge entirely overlooked the point that the evidence left no room for doubt, that if Jagannatha's consent had been asked, it would not have been withheld. The Judge did not have an opportunity of watching the demeanour of some of the witnesses, notably, Lakshmana Singh. I am not for these reasons disposed to attach much weight to the finding of the learned Judge on this point. In my opinion, the consent of Jagannatha Singh has been proved.
Point No. 5-The next point that has to be considered is, whether the consent of Jagannatha Singh is sufficient. He was a bandhu, a bhinnagotra sapinda of the deceased being his father's sister's son. It has been contended for the Government that as Jagannatha Singh was not an agnate of the last male owner, his consent would not be sufficient. It is urged that the consenting relation must be a male agnate of the deceased. In this case the question whether the consenting relation must be a male or a female does not arise. But it is said that it is only the consent of an agnate that will avail and that although cognates, that is, bhinnagotra sapindas are recognised for purpose of inheritance, they must be disregarded for the purpose of giving consent to an adoption. The law on the subject of kinsmen's consent has gradually been developed in the decisions of the Judicial Committee and though there might have been some indefiniteness in the law at one time, the question is, in my opinion, now free from doubt. The consent that is referred to in the rulings is that of sapindas which term includes both agnates and cognates and not that of agnates alone. To elucidate this point I shall refer to certain rulings of the Privy Council and from them the right principle can be deduced and they incidentally also show how the law on the point has been gradually developed.
20. The first case where the point was fully considered is Ramnad case The Collector of Madura v. Muthu Ramalinga Selhupathi (1868) 12 M.L.A. 397]. In that it was decided that in the case of an undivided family the consent of the adopting widow's father-in-law is both requisite and sufficient. If the father-in-law be dead, the consent of the husband's brothers must be obtained. Where the husband was divided from his co-parceners, the consent of the father-in-law would be similarly sufficient. Where no father-in-law is in existence, the case must depend upon the circumstances of the family. There should be such evidence of the assent of the kinsmen as suffices to show that the act of the widow was done neither capriciously nor from a corrupt motive. In the particular case, the family was a divided one and to examine the soundness of the argument now advanced, it is important to bear in mind that the relations whose consent was held to be sufficient were:
(1) Muthu Veroyee, the adopting widow's mother-in-law;
(2) Muthuswami, the natural brother of Annaswami, the widow's father-in-law and the nearest male relation alive.
21. Their Lordships after observing that Muthuswami was not a sapinda but only a samanodhaka, added that he was the natural brother of Annaswami and that circumstance might strengthen his title to be considered the natural male protector of Ramaswami's widow.
22. I refer to this case for the purposes of showing that the contention urged by the Government, that it is the consent of a male agnate that is required, is utterly wrong. Muthu Veroyee was an agnate but was clearly not a male. Muthuswami while being a male was clearly not an agnate in so far as his position was referable to that of the natural brother of Annaswami.
23. In tracing the development of the law, it is also useful to notice that their Lordships in this judgment advert to two considerations:
(1) Observance of religious duty, and (2) Heirship to property.
24. I shall presently show the later development of this branch of the subject. Before passing on from this case I need only observe, that the view was expressed in it, that the consent of every kinsman, however remote is not essential. The expression used in the judgment throughout is " kinsmen" excepting in the last paragraph where the word "sapinda" is used.
25. The next case is the Chinnakimidi case, Sri Raghunadha v. Sri Brozo Kishoro (1876) L.R. 3 I.A. 154 : I.L.R. 1 M. 69 (P.C.). In this case the principle was reaffirmed that where the family is undivided the requisite authority is to be sought within the family itself. The relations whose consent is necessary are again described as the husband's kinsmen. While their Lordships recognise the importance of an adoption being a religious act, they again indicate that considerations regarding devolution of property cannot altogether be lost sight of (page 193). One of the propositions of Mr. Justice Holloway from which the Privy Council expresses dissent is, that proximity to the deceased with respect to rights of property is not an element to be considered. (See p. 189.)
26. The next case is the Guntur case, Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi (1876) L.R. 4I. A.1 : I.L.R. 1 M. 174 (P.C.) ] the point actually decided was, that if the adopting widow has not acted capriciously or from a corrupt motive, the Court ought not to minutely examine the motives operating on her mind. These should be proof of assent on the part of the sapindas, their Lordships observed, as should be sufficient to support the inference that the adoption was made 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. The reference to " expediency " shows that an adoption is not considered wholly in the nature of a spiritual act and that temporal considerations cannot be disregarded. The relations indicated in this case are the deceased husband's "sapindas".
27. In the next case, Venkamma v. Subratnaniam (1906) L.R. 34I.A. 22 : 17 M.L.J. 114 (P.C.) the facts that arose necessitated a more definite statement of the law. Besides deciding that the quality of the assent in question was bad, it further decided that the consent of one of the two cousins of the deceased was insufficient, the other of the same degree not having been consulted at all. The deceased's relations are again referred to in this judgment as his kinsmen.
28. We then come to the case of Veera Baiavaraju v. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265 : 36 M.L.J. 40 (P.C.), where the doctrine of the kinsmen's consent is fully developed and taken a well-defined and definite form. This case after affirming the rule laid down in the Ramnad case when the family happens to be undivided, lays down the following rules:
1. Where the husband was at his death in a state of separation, the father-in-law's consent is essentially requisite to the validity of the adoption.
2. If there is no father-in-law, the assent of the divided brothers is equally requisite.
3. If a majority assent and one refuses, his objection may be discounted. (The rule must, on principle, be extended to where the minority consists of more than one).
4. The absence of the consent of the divided brothers or in case there is only one, want of his consent, cannot be made good by the authorisation of distant relatives.
5. The reasons which make the assent of the divided brothers a requisite condition apply mutatis mutandis to the case of the nearest sapindas other than brothers.
29. This case places the law beyond doubt. Where there are relations of various degrees, the consent of the nearest must be obtained. The consent of the majority will be sufficient and if there is only one, his consent will be requisite. The reason for insisting upon the consent of the nearest sapindas is stated to be that they are interested in the well-being of the widow, (in other words, that they are her natural guardians) or that they are interested in the spiritual welfare of the deceased or in the protection of his estate. I may, in passing, remark that if the nearest sapinda happens to be sufficiently remote, the first two elements exist only in theory. The consideration that uniformly holds good is the third consideration, namely, that pertaining to the devolution of property. In this connection it is useful to note, as indicating the development of the doctrine, the emphasis their Lordships lay upon the temporal aspect of adoption. They point out that although some expressions in the Ramnad case might imply that the question of reversionary interest forms only a secondary consideration, there are other remarks in the same case coupled with the observations in the Guntur case which show that rights to property cannot be left out of consideration. In this connection, they cite, doubtless with approval, the words of Sircar Shastry to the effect that an adoption is more a temporal than a spiritual institution.
30. The last case of the Privy Council on this point is Krist-nayya v. Lakshmipathi (1930) I.L.R. 43 M. 650 : 30 M.L.J. 265 (P.C.). The principles laid down in the previous cases are affirmed and the case is again a distinct authority for the proposition that the consent required is that of a majority of the nearest sapindas.
31. None of these cases gives support to the theory that the consent must be that of agnates. Dealing with particular facts, their Lordships have sometimes no doubt used the expression "agnates" but it is scarcely right to attach importance to the casual use of a word and lose sight of clearly stated principles. As an instance, 1 may point out that for the respondent a passage was strongly relied on in the judgment in Veera Basavaraju v. Balasurya Prasada Rao (1918) L.R. 45 I.A. 265 : 36 M.L.J. 40 (P.C.) where the effect of the Ramnad case is stated to be, that in the absence of authority from her husband a widow may adopt a son "with the assent of his male agnates." Can it be said that these words were intended to control the actual decision in the Ramnad case, which, it is clear beyond doubt, as I have shown, is not that the assent of the male agnates is requisite? Far from Veera Basavaraju v. Balasurya Prasad Rao (5 ) being an authority for any such position, it clearly shows that the consent that is deemed requisite is that of the husband's sapindas. Are we to ignore the repeated use of the words " sapindas " and " kinsmen " on the ground that the word ' agnate' is in some places used? The reasons given and considerations adverted to apply equally to cognates, i. e., bhinnagotra sapindas, as to agnates or sagotra sapindas. In the later cases most distinct emphasis is laid upon the reversionary interest of the consenting kinsmen.
32. If the view urged for the Government is correct, it would follow that in the absence of authority from her husband when there are no agnates living the widow cannot make an adoption at all. A most distant agnate can by giving consent validate an adoption, whereas a very near kinsman, if he happens to be a cognate cannot give consent. Is this distinction based on any principle? Though under the law cognates are postponed to agnates, several of the former class are more closely related to the deceased than many of the latter class. If the consenting cognates are the immediate reversioners I fail to see why their assent should not be sufficient. They are interested in the protection of the estate and it is their reversionary interest that is affected. Some relations who are cognates are more directly interested in the well-being of the widow and the spiritual welfare of the deceased than many remote agnate relations.
33. There is nothing in those decisions which, expressly or impliedly, gives countenance to the theory that in regard to consent, cognates stand on a footing different from that of agnates. In the scheme of the Mitakshara succession, cognates are, with the exception of the daughter's son, as a body postponed to agnates. As the consent of the nearer agnates is requisite and sufficient, so the consent, on failure of agnates, of the nearer cognates, would similarly validate an adoption. The rules laid down in the case of agnates, such as the view of the majority prevailing, must mutatis mutandis apply also to cognates. judged from the standpoint of the particular relation being required to fill the position of the widow's natural guardian or to possess an interest in the spiritual welfare of her husband, several cognate relations, as several agnate kinsmen, may be found to lack the necessary qualifications; but the test of propinquity from the point of view of property will be found an unfailing test and a sure guide.
34. So far I find no difficulty as this conclusion is fairly deducible from the rulings of the Judicial Committee. The Privy Council, however, has had no occasion to make a pronouncement as regards the rank to be assigned to the deceased's mother, his brothers, and his daughter's son if a conflict arises amongst them. Although for purposes of succession the order is, the daughter's son, the mother, the father, the brothers, it has now been decided that for the purpose of giving consent the father comes first. The mother according to the Ramnad case has a place, but the question remains where does she come? If the mother consents but the brothers re-fuse or the brothers consent and the mother refuses, what will be the result? In this scheme, what is the place of the daughter's son? When the contest has reference to this limited group, the point may present some difficulty, and for an obvious reason each one of these relations, on account of close affinity to the widow's husband, holds an important position both from the spiritual and temporal standpoints; but in the case of remoter kinsmen this element of difficulty does not exist. When the point I have indicated has to be decided, the observations of the Judicial Committee in regard to a family council may probably furnish a solution.
35. One aspect of this question actually presented itself in Viswasundara Rao v. Somasundara Ran (1920) I.L.R. 43 M. 876 and it was there decided that when the deceased's brothers assented to the adoption the consent of the daughter's son was unnecessary. I refrain from expressing any opinion on the actual point decided in it, although, 1 must confess, with the greatest respect to the learned Judges, that I am unable to agree with much of the reasoning which supports their judgment. To take only one of the reasons to say that the daughter's son owes no spiritual duty to the deceased is against the spirit and the letter of the Hindu Law and is opposed to Hindu sentiment. I do not, however, wish to enter into a detailed consideration of the reasons as I am generally in agreement with the criticism of this judgment of Ramesam, J., in Anne Brahmayya v. Chelasami Ratayya (1924) 20 L.W. 503.
36. The point that has to be decided in the present case, however, is, there being no agnate relation and the nearest cognate relation who under the law would be the presumptive rever-sioner having assented to the adoption, does his consent validate it? In my opinion, it clearly does.
37. I shall now deal with the sixth and the last point, is Kesar Singh a heritable bandhu of Anantaram Singh? The following pedigree explains the relationship of the parties:
Dhan Singh alias Kesu Singh (wife) Kausalya Bai | ____________________________________________ | | Ammir Bai--Doka Singh (husband) Mohan Singh | (wife) Venku Bai ________________________________ | | | | | Sundara Bai Jagannatha Padani Singh Ananta Ram Singh (Propositns) (husband) Singh (wife) (wife) Rama Bai Kissen Singh Gaura Bai | Ganga Bai--Ramachandra Singh (husband) | _______________________________________ | | | | Kesar Singh Subadra Bai Surja Bai Ranjit Singh (adopted son (husband) of Rama Bai Lakshmana Singh and 2nd deft.)
38. It is contended on behalf of the Crown that Kesar Singh is not a heritable bandhu of the propositus. The contention is based on what is known as the "line theory" of Professor Rajkumar Sarvadhikari. It is urged on the other side that judged by the tests accepted in the rulings of the highest authority the appellant is entitled to succeed and the doctrine formulated by Sarvadhikari does not find support in the words of the ancient expounders of law.
39. To deal with these contentions, it is necessary to glance briefly at a few of the leading principles in regard to the law of bandhu succession. The right of bandhus, or kinsmen related to the deceased through females, to succeed, is primarily based upon the text of Yajnavalkya which runs thus:.
The wife, daughters, both parents, brothers and likewise their sons, gotrajas, bandhus, a pupil and a fellow-student Of these, on failure of the preceding, the next following in order is heir to the estate of one who has departed for heaven leaving no putra (lineal male descendants).
40. Let us now turn to Vijnaneswara's commentary, the Mitakshara. The subject is dealt with in Chapter II, Sections 5 and 6 of Mr. Colebrooke's translation of that work. On failure of brother's sons, says the Mitakshara, (Section 5) got-rajas or agnates share the estate. Paternal grandfather is said to take the inheritance first Then the order of succession is given of gotraja sapindas. By way of parenthesis, Vijna-neswara says that he is dealing in this section Avith the succession of samanagotra sapindas only, as bhinnagotra sapindas are indicated by the term ' bandhu' The Sanskrit words are:
Bhinnagotranam sapindanam bandhu sabdena grahanat.
41. Here then do we find the definition of the word 'bandhu'. That word is used to indicate bhinnagotra sapindas the opposite of the term is gotraja sapindas or samanagotra sapindas. Section 5, as I have said, deals with the succession of gotrajas. In Section 6, the bandhu succession is dealt with. According to the text of Yajnavalkya cited above bandhus take the estate after the gotrajas and the order of succession among the bandhus is described in Section 6. In this connection it is unnecessary to refer in more detail to this section to which I shall return later.
42. We have thus seen that the term 'bandhu' is synonymous with bhinnagotra sapindas or sapindas belonging to a different family (gotra). Who then are sapindas? To understand this term, we must first turn to Clause 6 of Section 5. It is there indicated that "the relation of the sapindas ceases with the seventh person." But we must bear in mind that Section 5 is confined, as I have said, to the laying down of the order of succession of gotraja sapindas.- The limit of the 7th degree is thus expressly stated with reference to gotraja sapindas of the same family. In the Chapter of the Mitakshara dealing with inheritance (Vyavaharadhyaya)the word 'sapinda' as it occurs in the expression 'bhinnagotra sapinda' has not been defined. In Acharadhyaya (Chapter on the rules of conduct) to which I must now advert Vijnaneswara lays down the rules in regard to marriage.
43. The author says:
He should marry a girl who is non-sapinda with himself. Non-sapinda means, not his sapinda. Sapinda relationship arises between people through their being connected by particles of one body.
Vijnaneswara here recognises that the word 'sapinda' understood in this, its etymological sense, may be applied almost to all men and it is necessary to limit it, its signification, to certain definite individuals.
44. Vijnaneswara proceeds to say that with the object of so limiting it, Yajnavalkya has laid down "after the 5th ancestor on the mother's and after the 7th on the father's side" the relationship of the sapinda ceases.
45. Panchamat saptamat urdhvam matrutah pitrulah tatha.
This text means, says the Commentator, On the mother's side in the mother's line after the 5th, on the father's side in the father's line after the 7th (ancestor) the sapinda relationship ceases.
46. By this process we arrive at the meaning of the word 'bandhu'. In Vyavaharadhyaya we find that bandhus are described to be bhinnagotra sapindas. This is the first stage.-We then find it stated in the Acharadhyaya that the sapinda relationship ceases beyond the 5th in the mother's line and beyond the 7th in the father's line. This is the second stage. Putting these two parts of the definition together we arrive at the result that a bandhu is a relation belonging to a different family not removed beyond the 5th degree in the mother's line or beyond the 7th in the father's line. I have so far dealt with the text of Vijnaneswara's commentary upon it.
47. I shall now pass on to another text, the text of Manu which reads thus:
Anantarah sapindathyah tasyatasyadhanam bhavct.
48. which has been understood as meaning "the property of a near sapinda shall be that of a near sapinda". This is the foundation of the doctrine that the relation of. sapindaship must be mutual. I shall illustrate this by the following diagram:
A | __________________ | | S.a S-I | | S.b S-2 | S-3 | D | S-4.
49. In this diagram S represents a male and D a female. Are S. b and S-4 sapindas of each other? S. b is connected through his father and is within the prescribed 7 degrees from the common ancestor A, but S-4 who traces descent through his mother is beyond the limit of 5 degrees from A. There is therefore no mutuality of sapinda relationship between S. b and S-4. This element of mutuality being absent they cannot inherit to each other.
50. Let me now apply the rules 1 have so far deduced to the present case. Dhan Singh is the common ancestor of Kesar Singh, the claimant and Anantaram Singh, the propositus.Kesar Singh claims relationship through his mother Gangabai and is 5th in descent from Dhan Singh. Anantaram Singh traces relationship through his father Mohan Singh and is third in descent from the common ancestor. The test of degree as well as the test of mutuality are thus satisfied. If these are the only two tests that are to be applied, Kesar Singh's claim to be a heritable bandhu must be upheld.
51. This leads me on to a discussion of: what I have described as the "line theory" of Professor Sarvadhikari.
52. Chapter 11 Section 6 of Mr. Colebrooke's translation of the Mitakshara must in this connection be referred to.
53. After having dealt with agnates in S., Yajnavalkya deals with bandhus in Section 6.
On failure of agnates the cognates are heirs; cognates are of three kinds, related to the person himself, to his father or to his mother as is declared by the following text.
54. The text of Vridhasatatapa is then cited which groups bandhus under three headings:
(1) Alma bandhus _Sons of his own paternal aunt, sons of his own maternal aunt and sons of his own maternal uncle.
(2) Pitru bandhus--Sons of his father's paternal aunt, sons of his father's maternal aunt and sons of his father's maternal uncle.
(3) Matri bandhus--Sons of his mother's paternal aunt, sons of his mother's maternal aunt and sons of his mother's maternal uncle.
55. Vijnaneswara then proceeds:
Here by reason of near affinity atma bandhus are his successors in the first instance, on failure of them pitru bandhus; or if there be none, matri bandhus. This must be understood to be the order of succession here intended.
56. Professor Sarvadhikari evolves a theory out of this. He proceeds in this way. The bandhus specifically mentioned will, on an examination, be found to belong to certain families and he infers therefrom that heritable bandhus must be restricted to those families. The families are the following:
1. The family of the propositus.
2. The family of the mother's father of the propositus.
3. The family of the father's mother's father of the propositus.
4. The family of the mother's mother's father of the propositus.
57. To this Professor Sarvadhikari feels obliged to add the cognate descendants of the propositus.
58. I shall now state the five groups of bandhus prepared on this basis Family No. 1--His (propositus's) cognate descendants.
Family No. 2 Cognate descendants of his agnate ascendants.
Family No. 3 Descendants of his mother's agnate ascendants.
Family No. 4 The descendants of his father's mother's agnate ascendants.
Family No. 5. The descendants of his mother's mother's agnate ascendants.
59. In the present edition of Sarvadhikari's work the bandhus belonging to the first three families are termed Atma bandhus, the bandhus belonging to the fourth family, Pitru bandhus, the bandhus belonging to the fifth family, Matri bandhus. As I have already said, according to this doctrine, a person who does not belong to these five families cannot be a heritable bandhu. First then, we have to ascertain whether applying this rule the claimant is a heritable bandhu of the propositus. Then we have to apply the test of mutuality, that, we have to determine, whether applying the same rule, the propositus is a heritable bandhu of the claimant.
60. Now taking the facts of this present case, the claimant, from the point of view of the propositus, falls within the five families. Kesar Singh is a cognate descendant of Anantaram's agnate ascendant. But Anantaram, from the point of view of Kesar Singh, does not belong to one of the five prescribed families. Thus, the test of mutuality is wanting. Kesar Singh's claim cannot therefore be upheld if this theory is adopted.
61. The question is, does this doctrine find support either in any ancient text or recognised commentary. No authority is relied on by the learned author. The result of applying the rule laid down by him is to further narrow the class of heritable bandhus. My remarks are not intended to be a criticism of his theory as such. It may be both logical and rational, but it is the duty of the Court to interpret and apply the law as it stands and I find no justification for accepting the view of Professor Sarvadhikari. This rule has not received the approval of the Judicial Committee
62. The learned Government Pleader invites our attention to three cases. The first case he relies upon is Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.).
A (S) | __________________ | | B (s) C (d) | D (d) | E (s) | F (s)
63. E in the diagram above given was the claimant in the case and the learned Judges held that he could succeed to the estate of B, the propositus. This was the point decided and so far there is nothing in the case to support the respondent's contention. Having held that E can inherit, the learned Judges went on to state, at the close of their judgment, that F would not be a bandhu and no reasons are given. This is clearly an obiter dictum. It is suggested, and this seems to be the case, that this decision having been given at the time Sarvadhikari delivered his lectures the learned Judges adopted his view and in the illustration gave expression to it.
64. Nor did the present question arise in Babu Lal v. Nanku Ram (1894) I.L.R. 23C. 339 which is relied on merely because certain observations in the previous case Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) were cited in the judgment. To remove any misapprehension 1 must state that at page 345 certain relations are found grouped in five classes, and beyond the mere accident that the families mentioned by Sarvadhikari are also five in number, there is nothing in common between the five groups in this judgment and the five families of Sarvadhikari.
65. The third and the last case relied on for the respondent is Chinna Pichu Aiyangar v. Padmanabha Aiyangar (1920) I.L.R. 44M. 121 : 39 M.L.J. 417. The claimant in that case is indicated in the following diagram:
S | __________________ | | S D | | S B | | S S | S
66. The claim was disallowed on the authority of Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) Napier, ]., expressly said that he would adopt the view of Sarvadhikari for the reason that Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) had never been doubted. This view, however, did not commend itself to the other learned Judge, Sadasiva Aiyar, ]., but he agreed with Napier, J., in disallowing the claim on the somewhat curious ground that he is generally against claims by remote relations and that only by legislation the anomalies of the present law could be removed.
67. I do not think there is such authority as will compel us to accept the view of Professor Sarvadhikari which finds no support in the texts of ancient commentaries and which has the effect of unduly limiting the bandhus who can inherit. Several modern commentators have refused to recognise the dictum of this learned writer as correct. 1 need only mention Ghose and Sircar Shastri. In the table given in Sir Sankaran Nair's Edition of Mayne, a person is indicated as the heritable bandhu who occupies the position of Kesar Singh although in the table given in the present edition which is apparently modelled upon Sarvadhikari, that relation is omitted.
68. The subject of bandhu successions was considered at some length in Ramchandra Martand Waiker v. Vinayak Venkatesh Kothekar (1914) I.L.R. 42 C. 384 (385) : 27 M.L.J. 333 (P.C.). Among the tests laid down in the very instructive judgment is not to be found the test now under discussion. Although their Lordships refer to passages in Umaid Bahadur v. Udoi Chand (1880) I.L.R. 6 C. 119 (F.B.) and Balm Lal v. Nanku Ram (1894) I.L.R. 23C. 339 as also to the work of Sarvadhikari, there was no necessity to consider the present point.
69. It has been suggested that as the authority of Sarvadhikari as an eminent lawyer has been recognised by the Judicial Committee, we must adopt the rule formulated by him on this head. 1 do not think that this is a safe guide. Now turning to the five families as classified by Sarvadhikari, father's father's sister's son is described as Atma bandhu, whereas according to the text he is a Pitru bandhu. And again, mother's father's brother's son and mother's father's sister's son are according to Sarvadhikari Atma bandhus, whereas they are according to the text Matri bandhus. According to Sarvadhikari again, the bandhus in the first two families must be exhausted before a bandhu in the third family can come in. This view has been dissented from by the Privy Council in Muthuswami Mudaliar v. Sunambedu Muthutkumaraswami Mudaliar (1896) L.R. 23 I.A. 83 : 6 M.L.J. 113 (P.C.). In that case mother's brother was preferred to father's father's sister's son, that is a relation in family No. 3 (Sarvadhikari) was preferred to a relation in family No. 2 (Sarvadhikari). At page 409 their Lordships describe a father's father's sister's son as a pitru bandhu which is in consonance with the text but is against the view of Sarvadhikari. It is noteworthy that in Muthuswami v. Muthukumaraswami (19) which is the decision of the Madras High Court, affirmed by the Privy Council in the last mentioned case MuthuSwami Mudaliar v. Sunambedu Muthukumaraswami Mudaliar (1896) L.R. 23 I.A. 83 : 6 M.L.J. 113 (P.C.), the grouping of Sarvadhikari was not accepted. In Vedachala Mudaliar v. Subramania Mudaliar (1921) I.L.R. 44M. 753 : 41 M.L.J. 676 (P.C.), the dicta of Muthuswami Aiyar, J., in Muthuswami v. Muthukumaraswami (1892) I.L.R. 16M. 33 : 3 M.L.J. 296 were approved by the Judicial Committee. I have arrived at the conclusion that the view of Professor Sarvadhikari on this point cannot be accepted.
70. I cannot conclude the discussion of this point without adverting to one matter which I think is of some importance. I have said in the course of this judgment, that in the case of bandhus, sapinda relationship ceases beyond the 5th from the mother and the 7th from the father. This is repeatedly referred to in the judgment of the judicial Committee In Ramchandra Martand v. Vinayak Venkatesh (1914) I.L.R. 42 C. 384 (385) : 27 M.L.J. 333 (P.C.). The question in that case was whether the plaintiffs who claimed through their mother but who were bhinnagotra sapindas beyond the fifth degree could inherit. It was held that they could not. I refer to this point, because there are some observations in the judgment which may at first sight seem to imply that the limit of sapinda relationship in the case of bandhus ceases with the 5th degree irrespective of whether the claim is traced thrdugh the father or the mother. The District Judge has held "that the appellants claiming through their mother and being 6th in descent from their common ancestor Timaji Pant were outside the limits of heritable bandhus recognised by the Mitakshara Law and has no claim." (See page 291). This was the view that was affirmed by the Privy Council. There is nothing in the judgment to suggest that their Lordships intended to do away in the case of bhinnagotra sapindas well-recognised distinction dependent upon whether the claim is traced through the father or the mother. The view which their Lord ships refused to accept is that of Gopalachandra Sircar Sastri the view which was pressed before the Judicial Committee by Mr. de Gruyther to the effect that the word "bandhu" includes either all cognate relations without any restriction or at any rate all cognates within seven degrees on both the father's as well as on the mother's side. The distinction to which I have referred is recognised in all works of Hindu Law whether the writer belongs to the school of Sarvadhikari or not. It was not suggested in the course of the arguments before us, that such a distinction does not exist but I have considered it necessary to make these remarks as in what I have stated I have recognised this distinction.
71. My conclusion therefore is, that Kesar Singh is a heritable bandhu of Anantaram Singh and the claim of the Government must fail on this ground also.
72. In the result the appeal succeeds and it is allowed and the suit is dismissed. I agree in the order as to costs made by my learned brother.