The consent of sapindas to an adoption by a widow is a fiduciary power and must be exercised objectively and honestly with reference to the widow's branch of the family.

Judgment

SUBBA RAO, J.: This appeal on a certificate is preferred against the judgment and degree of the High Court of Judicature at Madras confirming those of the Subordinate Judge, Madurai, in a suit for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid. The following genealogy will be helpful to appreciate the facts and the contentions of the parties:

Shanmugha, Subramania and Kulandaivelu (Jr.) became divided in 1878 and since the division each of the three branches of the family was living separately. Kulandaivelu (Jr.) died in the year 1912 possessed of considerable property described in the plaint schedule leaving him surviving his widow, Guruvammai Anne who is the 1st defendant as his sole heir. In 1951, Guruvammal Anni; with a view to adopt the 2nd defendant to her deceased husband, wrote letter to her husband s sapindas who were majors i.e. plaintiffs 1 and 2, and defendants 5, l1,12,14,19 and 20, seeking their consent to her adopting the 2nd defendant. The said sapindas, except defendants 12 and 14, refused to give their consent for the reasons mentioned in their replies. Defendant 12 did not receive the latter, but the 14th defendant gave his consent to the adoption. On May 25, 1951, Guruvammal Anni adopted Kulandaivelu (Jr.) the 2nd defendant, as a son to her late husband. On May 30, 1951, she executed Ex. A-1, the adoption deed, and registered the same on June 12, 1951. Chandarashekhara, the son of Subramania, and his son, Kanniappa, and three minor grandsons filed O. S. No. 156 of 1951 in the Court of the Subordinate Judge, Madurai, for a declaration that the adoption of the 2nd defendant by the 1st defendant was invalid, void and of no effect. Defendant 3, is the natural father of defendant 2; defendants 4 to 21 are the other sapindas of 1st defendants husband, being the descendants of Renganatha. The particulars of their relationship to Kulandaivelu will be seen from the aforesaid genealogy. It was inter alia, alleged in the plaint that the adoption made by the 1st defendant of the 2nd defendant without the consent of the sapindas was bad and that the consent given by the 14th defendant was purchased and therefore would not validate. Defendants 1, 2 and 3 filed written statements supporting the adoption; they pleaded that, as the nearer sapindas improperly refused to give the consent, the adoption made on the basis of the consent given by the 14th defendant was varied. The learned Subordinate Judge, on a consideration of the evidence and the relevant law on the subject came to the conclusion that the 12th defendant, though received the notice seeking his consent, returned the same, that the other sapindas, excluding defendant 14, improperly refused to give their consent to the adoption and that, therefore., the adoption made with the consent of defendant 14 was valid in law. The subordinate Judge also rejected the contention of the plaintiffs that the 14th defendant, having regard to his disbelief in the religious efficacy of adoption and the Hindu rituals, was disqualified from giving his consent. In the result, he dismissed the suit. On appeal a division bench of the Madras High Court, agreeing with the view of the learned Subordinate Judge, came to the conclusion that the sapindas were actuated by improper motives in refusing to give their consent. The second contention directed against the consent given by defendeant 14 does not appear to have been seriously pressed before the High Court. In the result the High Court dismissed the appeal with costs. It may be mentioned that the 1st defendant, Gurovammal Anni, died pending the suit and that the 1st plaintiff died after the appeal was disposed of by the High Court. The other plaintiffs have preferred the present appeal against the judgment of the High Court.

2. The main question raised in this appeal is whether the refusal of the sapindas, other than defendant 14, to give consent to the adoption of the 2nd defendant by the 1s