The main legal principle established in the judgment is that the consent of the daughters son, as the next heir, is necessary to validate the adoption by a Hindu widow.

Ramesam, J.

1. Suit to set aside an adoption and to set aside certain alienation by the first defendant, a Hindu widow and heir of the last male owner Brahmanna, who died, according to the evidence (D.W. 1), 50 years ago. The Subordinate Judge dismissed the suit. The plaintiffs appeal.

2. The plaintiffs and 4th defendant are the daughters sons of the deceased. The first point raised by the appellant is that the adoption is invalid as the assent of the nearest male heirs, of Brahmanna via., the daughters sons (plaintiffs and 4th defendant) was not sought by the first defendant. In Southern India, in default of husbands authority, a widow may adopt with the consent of her husbands kindred. The question is whether the daughters sons, when they happen to be the nearest heirs, should be consulted. Up to Vadreva Ranganayakammagaru v. Somasundara Rao (1921) 43 Mad. 876, the point has not arisen here and it could not arise elsewhere.

3. The reasons why such a point did not arise till now are obvious. It is very rarely that a grandmother adopts to the detriment of her daughters sons. If she has only one daughters son, she would adopt him in preference to others, or not adopt at all. If there are more than one, she would not adopt at all, as she would prefer the daughters sons to succeed equally. As for the spiritual purposes of the husband, a daughters son is capable of conferring such spiritual benefit so nearly well as the son, that consideration does not present any difficulty.

4. It is only where some motives prevailing over these usual considerations, that an adoption of a person other than the daughters son can take place to the detriment of a daughters son. The case in Vadreu Ranganayakammagaru v. Somasundara Rao (1921) 43 Mad. 876 is a case of an impartible Zamindari, and the eldest of the daughters sons was the next heir. The widow passed over him and adopted another daughters son.

5. In the present case, a daughters daughters son is adopted. Thus, even in these cases where the point, whether the consent of a daughters son who is the next heir is necessary, is raised, the actual adoption is of a descendant.

6. The question was not raised in the Court below and the respondent argues that it ought not to be allowed to be raised. The appellant points out that it is for the defendant who sets up an adoption to allege and prove the facts necessary for its validity and that the written statement relies on the assent of Seshayya and Narasayya (nephew arid grand nephew of the deceased)(Ex. 1) and on the fact that the consent of Kotayya, another nephew, was asked but refused. He argues there is no suggestion that the daughters sons consent was sought and if, therefore, it can be held, as a matter of law, that the assent of the daughters son, when he is the next heir and sui juris is necessary to validate the adoption, respondent cannot be prejudiced by the point being allowed to be raised at this stage.

7. I am inclined to agree with the appellants contention, provided that opportunity is given to the respondents, now that they state it is their case that the daughters Sons also have been consulted, to prove it; for, the plaintiff has limited his attacks in the plaint to certain grounds, one of which is not the non-consultation of the plaintiffs and 4th defendant.

8. I will now proceed to consider the point of law raised. The leading case on the doctrine of the sufficiency of assent of kinsmen to validate an adoption in Southern India is The Collector of Madura v. Moottoo Ramalinga Sethupathy (1867-69) 12 M.I.A. 397. The conclusion stated at page 440-441:

Upon the whole, then, their Lordships are of opinion, that there is enough of positive authority to warrant the proposition that according to the law prevalent in the Dravida country, a Hindu widow, not having her husbands permission may, if duly authorized by his kindred, adopt a son to him.

9. In reaching this conclusion, their Lordships point out (page 437) that the Mitakshara, Datta