Kumaraswami Sastri, J.This appeal arises out of a suit filed by the Rajah of Pittapur who claims to be the next reversioner to the Gollaprolu Estate for a declaration that the adoption of the 2nd defendant by the 1st defendant is invalid and not binding on the plaintiff and that it does not affect his rights either as reversioner under Hindu Law or as the Zamindar of Pittapuram entitled to a vested reversion in the Gollaprolu Estate on the death of the 1st defendant. The 1st defendant is the widow of Venkat Rao, the last male holder of the Zamindari who died issueless on the 4th of November 1871 and the 2nd defendant is the son adopted by the 1st defendant on the 15th of February, 1914.

2. The Gollaprolu Estate at one time formed part of the Pittapuram Zamindari and was granted by Gangadhara Rama Rao, the then Zamindar, to his brother Venkat Rao, by a grant filed in this case as Ex. O, dated the 8th of December, 1869. Venkat Rao died issueless on the 4th of November 1871 leaving two widows - the 1st defendant and one Venkayamma who died in 1889 - and the 1st defendant who is the sole surviving widow continued in possession and enjoyment of the estate. She made an adoption of her sisters son on the 18th of August 1886 alleging that her husband authorized her to adopt. The plaintiffs father who was then the Zamindar filed O. Section No. 30 of 1886, disputing the adoption on the ground that no authority was given to her by her husband and also on the ground that her husband had no power to authorize an adoption as he had renounced any power to adopt by an agreement entered into between him and the plaintiff on the 8th of December, 1869. The Subordinate Judge decreed for the Rajah and held that she had no authority from her husband. On the question as to the effect of the agreement, he held that such an agreement would not preclude an adoption. An appeal was preferred to the High Court and the judgment of the Subordinate Judge was confirmed on the 22nd of September 1891 (see judgment, Ex. SSSS. 4). The 1st defendant made a second adoption in 1914 and that is the adoption which is now in dispute. The following genealogical table, the correctness of which is admitted, sets out the relationship between the parties.

3. The genealogical table given below shows the relationship of the parties concerned in this litigation and will serve to elucidate some of the questions raised.

4. On the death of the second widow of Venkat Rao, the late Rajah of Pittapur filed O.S. No. 12 of 1889 to recover one-half of the Gollaprolu estate on the ground that the estate reverts to him in default of the grantee having no male issue. The suit was dismissed on the 28th of September 1891. Ex. TTTT-1 is the judgment.

5. The Rajah of Pittapur who was himself issueless adopted Ramakrishna the natural father of the 2nd defendant in this suit on the 28th of September 1873. Ex. T is the document evidencing the adoption. There was bitter ill-feeling between the late Rajah and his adopted son Ramakrishna for some years before the Rajas death in July 1890. On the 5th of October 1885 the plaintiff in this suit was born. Ramakrishna was disputing the plaintiffs legitimacy and on the death of his adoptive father, Gangadhara, he filed O.S. No. 6 of 1891 to recover the Pittapur estate. His case was that the Ranee never gave birth to the Plaintiff, that he was a child who was introduced into the palace and that the adoptive father owing to bitter enmity with him, got this child introduced into the Zenana and proclaimed it to be his son by Mangayamma, the Ranee. It is also alleged that the Rajah owing to physical infirmities was impotent. The defence to that suit was that the present plaintiff was the legitimate son of the Rajah and that he was entitled to succeed to the Zamindairi by virture of a will executed by the late Rajah. After a protracted enquiry during the course of which several doctors and experts were examined as also several persons connected with the palace, Mr. Mackenzie, the District Judge, held that the present plaintiff was not the son of the Rajah of Pittapur but a child introduced into the palace and that the will would not pass any title as he was not a persona designata but was only given the property in the capacity of an Aurasa son which he was not. An appeal was filed to the High Court and in November 1896 the High Court reversed the decree of the District Judge on the ground that the plaintiff was a persona designata under the will and took the estate whether he was a son or not. The High Court in this view held it was unnecessary to go into the question as to the legitimacy of the plaintiff. An appeal was filed to the Privy Council and their Lordships of the Privy Council in February 1899 upheld the judgment of the High Court as regards the will and considered it unnecessary to go into the question of legitimacy. The present plaintiff attained age in 1906 and assumed management of the estate from the Court of Wards.

5. It will thus be seen that so far as the present plaintiff is concerned the question as to his legitimacy was left open by the High Court and their Lordships of the Privy Council and there was the decision of the District Judge against him on that point.

6. It is not disputed that at the date of the adoption of the 2nd defendant by the 1st defendant, the next presumptive reversioners were Ramakrishna, the adopted son of the late Rajah and the plaintiff who is said to be his Aurasa son. As the 1st defendants authority to adopt was negatived in the litigation of 1886, it was necessary for her to get the consent of the plaintiff and Ramakrishna who were the next presumptive reversionary heirs. She applied for the consent of Ramakrishna by Ex. XV, dated the 27th of January 1914 and obtained his permission by the reply Exhibit XV(a), dated the 30th day of January 1914. She applied for the plaintiffs consent by the letter Ex. EE-9, dated the 2nd day of February 1914, but the plaintiff refused to give his consent by his letter Ex. EE-11, dated the 11th of February 1914. On the 15th of February 1914 the 1st defendant adopted the 2nd defendant.

7. The plaintiff filed the suit on the 17th of August 1915 for a declaration that the adoption of the 2nd defendant was invalid and for further reliefs.

8. Paragraph 7 of the plaint runs as follows:

7. (1) The 1st defendant frequently requested the plaintiff to render her brothers and her nephews substantial pecuniary assistance to enable them to acquire the "Voratla estate."

(2) Her brother Chelikani Seetharamaswami Garu also made a similar request more than once through the plaintiffs officers. As the request of the 1st defendant and the said Seetharasaswami Garu was not complied with, they were much displeased with the plaintiff. With a view to defeat his reversionary right and to spite him as well as to fraudulently secure a substantial portion of the Gollaprolu estate for the benefit of the 1st defendants brothers and her nephews and to enable them also to acquire the Voratla estate, the 1st defendant, her brother Seetharamaswami Garu and her nephews conspired with the 2nd defendant and his relations who had all been bitterly hostile to the plaintiff ever since the succession suit, O.S. No. 6 of 1891 on the file of the District Court, Godavari, and arranged to take the 2nd defendant in adoption on condition that (a) the 2nd defendant should settle one-half of the Gollaprolu estate absolutely with powers of alienation upon the 1st defendant so as to enable her to pass the property to her brothers and her nephews; (b) that in addition he should give her a monthly allowance of Rs. 500 during her life charged upon the other half; (c) that a cash loan of 21/2 lakhs of rupees should be secured from the Rajah of Venkatagiri at a low rate of interest to the 1st defendants brothers to enable them to acquire the Voratla estate involved in litigation with the Zamindarini of Tuni; and (d) that the (2nd defendant) should marry the daughter of the 1st defendants brother Seetharamaswami Garu.

9. Paragraph 8 of the plaint runs as follows:

After having entered into such conspiracy and having agreed to the aforesaid agreement with, the 2nd defendant and his relations, without consulting the plaintiff as the head of the family and without going to him (plaintiff) or properly applying to him for his consent, the 1st defendant sent a registered letter, dated 2nd February 1914, informing him that she had resolved to adopt the 2nd defendant and asking him to consent to it. The plaintiff sent his reply on the 11th February, giving his reasons against the adoption. The 1st defendant without any further communication to the plaintiff adopted the 2nd defendant on the 15th February 1914 and sent a registered letter to the plaintiff on the 16th February 1914 containing false and frivolous allegations inconsistent with her previous conduct and admissions and recognition of the plaintiffs status throughout." In paragraph 9, he states that in pursuance of the aforesaid arrangements two deeds were executed. In paragraph 10 he gives the following reasons which according to him invalidate the adoption. They are as follows:

(1) The 1st defendant had no authority from her husband or the plaintiff who was the head of the family to adopt the 2nd defendant;

(2) that the agreement entered into by her husband with the plaintiffs father precludes the 1st defendant from making an adoption, such agreement amounting to an implied prohibition by her husband against her adopting a son;

(3) that the 2nd defendants father was suffering from paralysis and was physically incapable of either giving his consent or of taking any part in the ceremonies which are necessary for the adoption;

(4) the fact that the 2nd defendants father who was in bitter terms of enmity with the plaintiff consented to give his own son in adopion would render his consent invalid;

(5) that the adoption was made by the 1st defendant 40 years after her husbands death under the influence of her brothers and nephews and from corrupt and improper motives to defeat the reversionary rights of the plaintiff and in pursuance of a conspiracy to secure the estate and other benefits for her brothers family; and that the 1st defendants conduct showed that she had determined to adopt and did not approach the plaintiff bona fide for his consent; and

(6) that the grant of 1869 of the Gollaprolu estate by his father to the 1st defendants husband was only a maintenance grant and was not intended to enure for the benefit of an adopted son or alienee.

10. The defendants in their written statement denied that the plaintiff is the son of the late Rajah or of his wife Mangayamma and state that he is not a reversioner entitled to sue. They state that the adoption was made bona fide and for legitimate reasons and is not the result of a conspiracy or ill-feeling as alleged in the plaint; that the deeds of settlement and maintenance executed by the 2nd defendant to the 1st defendant and referred to in the plaint are bona fide arrangements between them and are valid in law, that the refusal of the plaintiff to give his consent was purely personal and not bona fide and that the refusal was due to the desire of the Rajah to get the Gollaprolu estate to himself and to make the 1st defendant to adopt his own son. It is alleged that consent was obtained from the other sapindas also referred to in paragraph 11 of the written statement. The defendants deny that Ramakrishna was not in a fit state to give his consent or to take part in the ceremonies. They state that the adoption is valid and proper. They deny the allegation in the plaint as to the plaintiffs title to the Gollaprolu estate as a vested reversion by virtue of the grant. They also deny the prohibition, express or implied, against adoption alleged in the plaint.

11. The main questions in this appeal are (1) whether the plaintiff is the aurasa son of the late Raja and reversioner who would be entitled to succeed to the estate on the death of the 1st defendant, and (2) whether the adopion is invalid for all or any of the reasons given by the plaintiff in the plaint.

12. The Subordinate Judge in whose Court the case was instituted and who tried it and examined several witnesses was appointed as District Judge towards the close of the proceedings and the suit was formally transferred to him as District Judge. He decided that the plaintiff was the legitimate son, that Ramakrishna was not precluded from illness from consenting to the adoption or taking part in the ceremonies and that the adoption could not be disputed on that ground but that the plaintiff was entitled to withhold his consent as the adoption was made by the 1st defendant not bona fide but with a view to secure a personal advantage to herself. He decreed the plaintiffs suit.

13. On the issue of the legitimacy of the plaintiff, the defendants applied to put in the evidence of several witnesses in the former litigation (O.S. No. 6 of 1891) who were either dead or who could not be found. They relied on Section 33 of the Evidence Act. The Subordinate Judge held that such evidence is inadmissible as the suit was not between the same parties, the 2nd defendant in this suit not claiming through Ramakrishna although he was his natural son. On appeal Krishnan and Venkatasubba Rao, JJ., agreed with the Subordinate Judge in holding that the evidence sought to be let in was not admissible and on the evidence on record held that the plaintiff was the aurasa son of the late Raja. As regards Ramakrishna, they held that he was capable of giving his consent and that the adoption could not be impeached on the ground of Ramakrishnas ill-health or his incapacity to take part in the ceremonies. Krishnan, J., held that several of the objections of the plaintiff were futile, but that his objection that the 1st defendant was actuated by a desire to get her husbands property under her control so that she may deal with it as she pleased was valid and that though the 1st defendant may well be credited with an intention to benefit her husbands soul, her main object to get her husbands property under her control so that she may deal with it as she pleased and the widows motive in this particular being corrupt, the plaintiff withheld his consent for adequate reasons. He was for dismissing the appeal. Venkatasubba Rao, J., as regards the adoption, was of opinion that the widow in making the adoption was not influenced by any corrupt or improper motives, that the arrangement entered into by her was a bona fide arrangement, that the objections raised by the plaintiff were purely personal prompted by a desire to get the estate for himself and were not bona fide and that the adoption was good. He was for reversing the judgment of the Subordinate Judge and upholding the adoption. Owing to this difference of opinion, the judgment of the Subordinate Judge was confirmed and hence this Letters Patent Appeal.

13. As regards the legitimacy of the plaintiff, Mr. Grant for the appellant contended that u/s 33 of the Evidence Act he was entitled to put in the evidence of witnesses who were examined in the previous suit but who were now either dead or could not be called in this litigation. He frankly admitted that if such evidence was ruled out, he could not in this appeal say that the evidence on record is sufficient to support the contention that the plaintiff is not the legitimate son of the late Raja. I am of opinion that the depositions which are sought to be put in are inadmissible, as the 2nd defendant in this suit is not the legal representative of the plaintiff in O.S. No. 6 of 1891. He is no doubt the natural son of the plaintiff in that suit, and if he were not validly adopted, he would be the legal representative, but in this suit he claims not as the son of his natural father but as the adopted son of Venkata Rao entitled to the Gollaprolu estate.

14. In seeing whether a person is the legal representative of another or not for the purpose of rendering evidence admissible u/s 33, regard must be had to the state of affairs when the evidence is sought to be admitted. The fact that the 2nd defendant would have been the legal representative if there was no adoption would not make him legal representative after the adoption for the purpose of the admissibility of evidence. As both the learned judges in appeal agree on this question and have gone into the matter fully, I do not think it necessary to go over the same ground again.

15. As regards the validity of the adoption, the main questions for determination are whether the adoption was not a bona fide act on the part of the widow but was merely a device by her to get possession absolutely of half of her husbands estate and (2) whether the plaintiff was justified in refusing his consent to the adoption. The evidence was gone into in great detail on both sides and giving it my best consideration I have come to the conclusion that the judgment of Venkatasubba Rao, J., is right and that the adoption was not invalid.

16. After the adoption made by the 1st defendant in 1886 was held to be invalid, she did not give up the idea of making an adoption. It is not disputed that she consulted Mr. Srinivasa Aiyangar, a leading vakil of this Court, as early as 1901 about an adoption.

17. The evidence in this case shows that the 1st defedant who was about 67 or 68 years at the date of the adoption became ill two years before the adoption and wanted to adopt a boy.

18. So far as the boy adopted is concerned, it is nowhere suggested that owing to his health, conduct or character he was not a suitable boy to be adopted to the Golloprolu branch of the family. The Hindu Law givers enjoin that the boy to be adopted should be Adoora Bandhavaha meaning a sapinda as near as possible. The 2nd defendant was a near sapinda and having regard to the qualifications recommended in the Hindu Shastras as to adoption he would in every way be a fit and suitable person for being adopted. It is said that he was the son of a person who was a bitter enemy of the present plaintiff but it is not said that the 2nd defendant personally did anything which was improper.

19. In 1912 the plaintiff in this case had only one son. In 1913 another son was born to him. The plaintiffs evidence is that he wanted to give that boy in adoption to Chellayamma, a relation of his, and that he named the boy after Chellayammas husband. So that none of his sons were available. Ramakrishna the plaintiffs adopted brother had four sons. The 1st defendant opened negotiations with him for the adoption of one of his sons. About a year before the adoption actually took place, she approached Ramakrishna, but Ramakrishna was unwilling to give his boy in adoption as the 1st defendant was friendly with Pittapur and he thought he would be sending his son to the enemys camp by allowing the adoption. Negotiations continued and were carried on through Pakam Kuppiah, defendants 1st witness, C. Seetharamayya (1st defendants brother) defendants 27th witness and her nephew, C. Venkayya, defendants 22nd witness. Mr. P.V. Krishnaswami Chetti one of the leading vakils of this Court who had retired from active practice but who was the legal adviser to the Maharaja of Venkatagiri, the natural brother of Ramakrishna, was approached about two months before the actual adoption with a view to get Ramakrishnas consent by getting the Maharaja of Venkatagiri to use such influence as he had to get over any prejudice which Ramakrishna had to giving one of his sons in adoption. Mr. Krishnaswami Chetti acted in the matter and on the advice of Mr. Krishnaswami Chetti and the Maharaja of Venkatagiri, Ramakrishna agreed to give the 2nd defendant in adoption. Having secured what in her opinion was a suitable boy, she had to get the consent of the nearest sapindas as it has been laid down by their Lordships of the Privy Council that the consent of the sapindas required by a widow is that of the next presumptive reversioner and not the consent of the remoter reversioners. As the plaintiff refused to give his consent but as the only other nearer sapinda had agreed to give his boy, the 1st defendant came to Madras to make the adoption.

20. After Ramakrishna had given his consent, questions arose as to the payment of the 1st defendants debts which were then said to be about rupees 21/2 lakhs. Ramakrishna was approached on the question as to the 2nd defendant who was to be adopted paying those debts, and Ramakrishna referred the matter to the 2nd defendant who was then a major and whose consent would be necessary. The 2nd defendant did not want to be bothered with the debts and suggested that he would give half the estate to the 1st defendant, she paying all the debts and the 2nd defendant not being liable. The question also arose as to the maintenance of the 1st defendant as the half given would go to pay debts and the 2nd defendant on the advice of the Maharaja of Venkatagiri agreed to pay her Rs. 500 a month and in pursuance of this agreement the 2nd defendant executed two deeds (Exs. XVII and XVII (a)) giving one-half of the estate to his adoptive mother and Rs. 500 a month for maintenance. These deeds were executed the day after the adoption was actually made.

21. The evidence on this part of the case on the defendants side is that of the 1st defendant who was examined as defendants 8th witness, of Pakam Kuppiah, defendants 1st witness, of Mr. P.V. Krishnaswami Chetti, defendants 9th witness, of Venkayya, defendants 22nd witness, of C. Seetharamayya, defendants 27th witness and of the 2nd defendant who was examined as defendants 49th witness. The evidence of these witnesses has been referred to in detail by Venkatasubba Rao, J., and I need not set it out in detail again. As against this evidence, there is the evidence of Narasinga Rao who was examined as plaintiffs 113th witness. The Subordinate Judge has disbelieved him on several material points. He has clearly perjured himself as regards Exs. XVI and XVII. Krishnan, J., did not place much reliance on him. I agree with Venkatasubba Rao, J., in thinking that no reliance can be placed on the evidence of this witness.

22. As regards the motive of the widow in making the adoption, Krishnan, J., was disposed to accept the statement of defendants 1st witness that the idea of adoption was first mooted about a year before the actual adoption took place. He also observes "the 1st defendant may well be credited with an intention to benefit her deceased husbands soul as that is always a consideration for an adoption but her main object was undoubtedly to get her husbands property or as much of it as she could get into her own hands absolutely." In another part of the judgment the learned Judge says : "Whatever weight one may attach to the religious benefits flowing from an adoption, one cannot ignore the secular rights flowing from it." According to the learned Judge, the widow was not acting solely with a desire to benefit herself personally and with a corrupt motive but with mixed motives (1) desire to adopt, and (2) desire to benefit herself personally.

23. In dealing with this part of the case I think it is necessary to have regard to the fact that she was an old woman who was ill and who was apprehensive that she would not live long. There is no cross-examination of the 1st defendant or her witnesses who say she was ill though it is now suggested that she was quite well at the time. In the absence of any cross-examination as to this point I see no reason to doubt the fact of her illness. She made the first adoption in 1880 alleging an authority from her husband which the Court in the suit by the late Raja of Pittapur found to be false. It is not suggested that in the first adoption she made when she was much younger she reserved any personal benefit to herself. It is no doubt true that she adopted her sisters son but it should be borne in mind that at that time the then Raja of Pittapur was himself issueless and he had to adopt Ramakrishna. Ramakrishna had at that time no sons whom he could give in adoption. It is not suggested that there were any boys among the sapindas who could be adopted. If she was bent on getting absolutely any portion of her husbands estate, she as a wordly woman would certainly have provided for it when she ,was adopting her sisters son who would raise no objection as, there was no guarantee that though he was her sisters son he would treat her with affection after the adoption was completed and the boy grew up. In 1901 she consulted Mr. S. Srinivasa Aiyangar, a leading vakil who now appears for the plaintiff in this suit, and it is not suggested that when she consulted him as to adoption she bargained for any terms for herself. It is also to be noted that the plaintiff in this suit who was born in 1885 attained age in 1916 when he got possession of the estate from the Court of Wards. The only other sapinda whose consent was necessary was Ramakrishna. If she wanted to make an adoption and secure a personal benefit for herself, there was nothing to prevent her from making the adoption with the consent of Ramakrishna who was the sole reversioner whose consent was necessary till the plaintiff attained majority in 1906.

24. Although it was stated that Ramakrishna got a personal bribe and consented to the adoption, this point was not pressed before us and no objection is urged to the adoption on this ground. So far as the evidence goes, far from seeking any personal advantage to himself, Ramakrishna was unwiliing to give his son in adoption. In addition to the evidence on the defendants side, there is the evidence of Narasinga Rao, plaintiffs 113th witness who though entirely hostile to the defendants, deposes as follows in cross-examination : "About the adoption Pakam Kuppiah was coming and telling me before that. I remember only one occasion when he spoke to me about the adoption. It was in January, a few days before this conversation. He told me that he approached Mr. Ramakrislmayya about the adoption and that Ramakrishnayya was not willing to give the boy in adoption and that he had asked Kuppiah to pack away."

25. A great deal of the argument turned on the adopted son giving one-half of the estate to the adoptive mother and on his also agreeing to pay Rs. 500 a month for maintenance. As I said before, the evidence on this part of the case is that after the adoption had been settled, reference was made to the debts of the 1st defendant the adoptive mother and the boy was asked to pay those debts, and that the suggestion of the adopted son was that he should not be saddled with the debts but that he would give half the estate to her so that she could pay her debts out of the estate.

26. On this part of the case the contention of the plaintiff as set out in the plaint and in the evidence of the witnesses was that the 1st defendants brother C. Seetharamayya was engaged in a litigation as regards the Voratla estate, that he bought the equity of redemption, the mortgagee being the Rani of Tuni, that a suit was pending in the Vizagapatam Court and the 1st defendants brother wanted Rs. 21/2 lakhs to settle the claim and that it was to provide for this sum to settle that claim the widow wanted Rs. 21/2 lakhs to be paid by the adopted son and got a deed for one-half of the property. It is stated that Rs. 21/2 lakhs was raised by the 1st defendant by executing the mortgage (Ex. XVIII) in favour of the Maharajah of Venkatagiri.

27. The suit about the Voratla estate was O.S. No. 30 of 1910 in the Vizagapatam Sub-Court. It is admitted that there was no settlement in that suit and that the plaintiff in that suit got a decree for about Rs. 7 lakhs. There can be little doubt however that in 1913 the 1st defendant and her brother hoped that the suit would be settled for Rs. 21/2 lakhs, and applied to the plaintiff for help which he was unwilling to grant. Letters (Ex. EE to EE-8) were filed to show that an application was made to the plaintiff for help in respect of the Voratla claim. It is however conceded before us that neither Rs. 21/2 lakhs nor any other sum was paid in respect of the Voratla litigation by the 1st defendant or her brother and that no portion of the money which the 1st defendant raised by mortgaging her half-share to the Maharajah of Venkatagiri under Exhibit XVIII went to meet any claim in connection with the Voratla litigation.

28. The case for the defendants is that the 1st defendant had debts to pay amounting to about Rs. 21/2 lakhs, that when she was making the adoption she naturally was concerned as regards these debts and asked the adopted son to pay off those debts and that the adopted boy suggested that instead of his paying the debts, the adoptive mother could pay them out of the half-share of the estate which he would give her.

29. So far as I can see, only two cases were put forward at the trial. The plaintiffs case was that this arrangement as to Rs. 21/2 lakhs had nothing to do with the debts of the 1st defendant but was merely a device by the 1st defendant to get half the estate, on which she could raise money to help her brother in the Voratla litigation and that she actually did so by getting a loan from the Maharaja of Venkatagiri of Rs. 21/2 lakhs. The case for the defendants is that it was to pay her debts that she raised a loan from the Maharaja of Venkatagiri and it had nothing to do with the Voratla litigation and that out of the loan so raised she discharged her debts.

30. The case for the plaintiff as to the Voratla motive has entirely failed. It was not pressed before us in this appeal, but the plaintiff wants to turn round and say that the 1st defendant has not proved that she had debts of her own to the extent of Rs. 21/2 lakhs and that they were her brothers debts which she wanted to pay. It is argued that the 1st defendant has not proved each item of the debt which she is alleged to have paid and so these were not her debts but her brothers. It is complained that she has not produced vouchers or accounts and it was sought to treat this case as if the 1st defendant was called upon by the pleadings or evidence to prove each item that went to make up the debt of Rs. 21/2 lakhs which she says she paid. I do not think that the plaintiff who fails to prove the specific case set up by him is entitled to say that the 1st defenadnt should prove every item.

31. As regards the debts said to have been discharged, there can be little doubt that the whole of Rs. 21/2 lakhs went to discharge the debts. Exhibit XVIII is a mortgage, dated the 25th of July 1914, executed by the 1st Defendant and her brother and her brothers sons in favour of the Maharajah of Venkatagiri. It begins by stating that the amount of Rs. 2,50,000 was borrowed for the purpose of clearing the debts borrowed by the executants. Venkayya, one of the executants of the document, states that this loan was arranged 2 or 3 months prior to the execution of the mortgage bond, i.e., about the month of May, the adoption being in February. He says that the loan was taken for the purpose of liquidating the debts of the 1st defendant and that her debts were discharged out of the money got by the mortgage. He denies that any money was needed at that time for the Voratla litigation. In cross-examination he states that he was present when some of the 1st defendants debts were discharged and that the debts of the 1st defendant on khathas and promissory notes were partly in her name and partly in the names of himself and his brothers and 1st defendants brother. He states that the debts of his own family would be about Rs. 60,000 or Rs. 70,000, that there were outstandings also to that extent and that at the time of 2nd defendants adoption their own debts would have been Rs. 40,000 or Rs. 50,000. He says that he was present when debts amounting to Rs. 25,000 or Rs. 30,000 of the 1st defendant were discharged. Kuppiah, defendants 1st witness who negotiated the loan from the Maharaja of Venkatagiri, says that the talk about the Maharaja of Venkatagiri lending money arose more than 3 months after the adoption, that the 1st defendant wanted a loan to discharge her debts, that the Maharaja of Venkatagiri when approached agreed to give a loan provided there was adequate security, and that the Maharaja, when informed that one-half of the Gollaprolu estate which the 1st defendant got would be given as security, thought that the security was insufficient and said he would give the loan only if her brother and nephews would also execute the mortgage deed and include their properties also. The fact that the debts to be discharged are said to be the debts of the executants does not show that the debts are not the debts of the 1st defendant. It is usual, when more than one person executed a document alleging that money was borrowed to pay debts, for the lender to get a general statement that the debts were the debts of the executants and not to give room for future contention by stating what the debts of each of the executants were. He says that as regards the debts due by the 1st defendant there were registered mortgages for Rs. 10,000, promissory notes for Rs. 40,000, pledges of jewels and money received on chits, and that after discharging those debts he took back those vouchers and gave them to1 the Maharaja of Venkatagiri. He says that the 1st defendant told him that she contracted debts for litigation and other expenses, that no portion of the money lent by the Maharaja was utilized for the Voratla litigation and that after discharging the 1st defendants debts there was a balance of only Rs. 10,000 which he handed to the 1st defendant. He swears that no portion of the money received from the Maharaja of Venkatagiri went towards the liquidation of any portion of the debts of the 1st defendants brothers family.

32. It is usual for a person lending money on mortgage for discharging debts to get the cancelled documents and vouchers and keep them as evidence should any disputes arise as to consideration and it is quite probable that these vouchers were given to the Maharaja of Venkatagiri. It does not appear that the Raja or his Dewan was subpoenaed to produce the vouchers. All that appears from the evidence of Kalyana Rao, defendnts 28th witness, is that the Maharaja of Venkatagiri was subpoenaed by defendants to produce some documents and that he handed over to Kuppiah the documents mentioned in the summons. It appears that the summons which the witness speaks of was the subpoena taken out by the defendants and it does not appear that the plaintiff took out any subpoena. The witness states that defendants 1st witness did not hand over to the Maharaja of Venkatagiri the documents evidencing the debts discharged out of the consideration for the mortgage but admits that he did not make a search of all the records and that he only searched a box containing letters from the Raja of Pittapur. The 1st defendant in her deposition states that she had at the time of the adoption debts to the extent of Rs. 21/2 lakhs and that arrangements were then made to discharge those debts. This is what she says:

I said to the 2nd defendant that he might take the whole estate and discharge my debts. He said he would take half and that I might take the other half of the estate and discharge my debts. The said settlement deed thus gave me half the estate for discharging my debts.... I arranged to discharge my debts and for that purpose I took a loan from the Maharaja of Venkatagiri. I borrowed Rs. 21/2 lakhs from him and executed a mortgage deed to him.

33. She says that the debts referred to were her own debts and not her brothers debts and that as the brothers executed the document and mortgaged their properties also, the Maharaja wanted that the debts should be described as the debts of all of them. She says that some of her debts were on pledge of jewels and that Kuppiah, defendants 1st witness, and Prakasam brought money from Venkatagiri and discharged the debts. She says that all her debts were paid off. The 2nd defendant who is the adopted son states that the talk about giving half the estate to the 1st defendant was about a week or 10 days before the deeds were executed. This is what he says:

P. Kuppiah (D.W. 1) spoke to me about them. He told me that the 1st defendant sent word to my natural father that she wished to adopt me on condition of my taking the whole estate and discharging her debts myself and that my natural father sent word through him to as certain if I was willing to that course and if not what my opinion on the matter was. I replied that it would be better if I were given half the estate free of debts, the 1st defendant herself taking the other half with the debts and that I would abide by the opinion of the elders on that matter. D.W. 1 went and consulted my natural father and came back to me and told me that my natural father agreed to my proposal.

34. He says that he did not know if there was a talk before the adoption about a loan from the Raja of Venkatagiri and that he heard of it only 3 or 4 months after the adoption. The evidence was given by him in Telugu and when it was interpreted to him he wanted to correct himself, by saying that defendants 1st witness, when he spoke to him about taking the whole estate with the debts, did not say anything about the adoption. The Judge notes that the witness stated what was recorded in the deposition. The evidence was all taken in one day and it is argued for the appellant that in view of that fact his correction could not be an afterthought, that as the deposition was given in Telugu (the Judge being a Tamil gentleman) too much importance should not be attached to the word "condition" in his deposition and that reading the evidence as a whole it cannot be said that the adoption was conditional on his giving half the estate. C. Seetharamayya (defendants 27th witness) who is 1st defendants brother states that after the adoption was settled, the 1st defendant asked the 2nd defendant to take the estate and discharge her debts and that the 2nd defendant replied he would not discharge the debts but that he would give her half the estate with absolute rights and she might discharge the debts herself. He says that the loan under Ex. XVIII was borrowed to discharge the 1st defendants debts, that the debts were debts partly borrowed in her name and partly in his name when the creditors hesitated to give money on the ground that the 1st defendant was a widow, that all these debts were borrowed for the 1st defendant and that they would be entered in the chittas. He was asked in cross-examination about some of the debts discharged and he says that most of the documents were executed by him or his elder brother or Venkayya whoever happened to be present and some jointly by all of them, that they were executed far the 1st defendants purposes and that she would pay moneys to them from borrowed moneys. This is what he says:

They were executed for her purpose and she would pay us not only from these borrowed moneys and also other funds of hers. She would give us as much out of the borrowed moneys as she liked. As the 1st defendant was a female, the people were not willing to lend her money and the creditors were not satisfied that the moneys lent by them were for purposes binding on her estate. The 1st defendant also used to borrow sometimes in her own name.

35. He says that his joint family has got properties yielding about Rs. 40,000 and that they have still debts to pay.

36. As regards the income of the Gollaprolu estate, the net income is said to be Rs. 40,000 a year, which will be about Rs. 3,400 a month. The fact seems to be that the 1st defendant who had no nearer relations of her husband treated her brothers and her sisters and their children with great affection. She was spending large sums upon them and there can be little doubt that she was spending the income of the estate on herself and her brothers and sisters and their children. There can also be little doubt on the evidence that the debts which she had at the date of the adoption would not bind the reversioners. They were purely her personal debts. So long as she was in possession of the estate she could use the income as she pleased, but she could not mortgage or encumber the estate so as to be valid beyond her lifetime and it is only natural that the creditors hesitated to lend large sums of money to her as they would lose the money if she died or made any adoption and she had to borrow through her brothers and nephews who according to the evidence had property yielding about Rs. 40,000 a year. As her brothers and nephews were well off, there was no difficulty for her in getting loans through them. It appears from the evidence that out of the debt of Rs. 21/2 lakhs which had to be paid, Rs. 50,000 were debts in her own name for which she could be sued and the rest was borrowed by her brothers or nephews at her request. If she was minded to defraud her creditors, she could have made an adoption and left the creditors unpaid. She however did not want to adopt this course but. was anxious that the debts incurred by her or incurred at her request should be paid. At the time of the adoption she was ill and according to Hindu notions the sin arising from a person dying with his debts unpaid applies equally to women though in the case of a man leaving sons the law has made the pious obligation to save the father from the consequences of the sin a legal obligation. I do not think a widow who makes an adoption and stipulates that the adopted son should pay her debts is doing anything corrupt or immoral. On the contrary I should think that she is doing an honourable thing. It has now been settled by their Lordships of the Privy Council in (1927) L.R. 54 I.A. 248 (Privy Council) , that an adoption made by a widow on condition that she should enjoy the income of the estate during her lifetime would in the Madras Presidency be valid even though the adopted boy was a minor and his father entered into the arrangement. Though she will be securing a personal benefit and though the adopted son may for several years be deprived of the estate, the adoption will be valid. If after the adopted son comes of age he commutes the interest reserved by the widow into an absolue share of a portion of the estate, it cannot be said that the transaction will be void. If the adopted son is at the time of adoption a major capable of contracting as he was in the present case, I can find nothing illegal in the widow-requiring the adopted son to pay her debts. If the adopted son instead of undertaking the burden thinks that it is in his interests to get an unburdened share of the estate and makes the widow to pay her debts out of any share allotted to her, I find it difficult to see how the adoption would be invalid as being made from a corrupt motive. The case may be different if the widow had no debts to pay or if the proportion of the estate granted to her was so disproportionate to the debts that the Court can on the evidence treat it as a device pure and simple by the widow under the guise of an adoption to get a large share of her husbands estate to herself. In the present case the net income of the estate is said to be Rs. 40,000 a year and half the income would be Rs. 20,000 a year.

37. The Maharaja of Venkatagiri who lent Rs. 21/2 lakhs thought that the estate was not sufficient security although at the time of the mortgage the widow had absolute title to half the estate and it cannot be said that if there were debts to pay amounting to Rs. 21/2 lakhs, the arrangement was one which the Court would hold to be mere device to get an absolute property. As a matter of fact, the half which she got from the adopted son was in 3 or 4 months after the adoption mortgaged to the Maharaja of Venkatagiri and the debts were paid off. She had no other means to pay the debts so that any possible advantage which she might get would be any surplus remaining after the debts were paid. Meantime interest was payable on the mortgage for Rs. 21/2 lakhs. Having regard to all the facts in this case I am of opinion that the adoption was made without any corrupt motive by the widow. While on the one hand she wanted to adopt in order to advance her husbands and her spiritual welfare she did not want to evade payment of the debts which she considered legally or at least morally binding on her. It is no doubt true that these debts would not bind the reversioner if he chose to contest them. But at the same time it cannot be said that her stipulating for the discharge of the debts which she owed and. which she could pay out of the income of the estate even after adoption by making it a condition that she should remain in possession of the estate for her lifetime makes the adoption invalid as being made from a corrupt motive.

38. It has been argued for the respondent that it was only when she found that the plaintiff would not give her brothers Rs. 21/2 lakhs for the purpose of the Voratla estate litigation that she conceived the idea of adoption as a means of raising money to help her brothers and that the motive was therefore corrupt as she wanted under the guise of an adoption to get a personal gain to her brothers. I do not think the evidence supports this conclusion.

39. Exhibits EE series and the evidence of the plaintiff and his Dewan show when the request for money was made. It appeals from the: date that the 1st defendant resolved to adopt the 2nd defendant before, the refusal of the plaintiff to accede to her request for money to help her brothers. The letters to the plaintiff asking for money are Exs. EE, EE-2, EE-5 and EE-8. Ex. EE is not dated, but it is argued that the evidence shows that it must have been in May or June 1913. It says that her brothers were anxious to buy the Voratla estate and requests the plaintiff to give them pecuniary help. Ex. EE-2 states that if he was willing to render the help asked for, her brother would come and explain matters. It concludes by saying that the matter about the Voratla estate has got to be settled at once and requesting for an immediate reply. In Ex. EE-5 she reminds the plaintiff of her request and states that if he does not help her brothers, they would give up the Voratla estate and that they have taken a weeks time to settle the matter. Ex. EE-8 is another reminder where she wants a definite reply whether he would help her brothers or not. It appears from Ex. EE-16 that a person called Kondayya was paid on the 3rd January 1914 Rs. 8-2-9 for going from Undoor, the 1st defendants place to Pittapur, and it is suggested that the letter Ex. EE-8 was the letter which the man took and it is sought to fix the date as January 1914. There is however nothing in Ex. EE-15 or EE-16 to support this. Though the 1st defendant denied that she wrote these letters, I do not think there is sufficient reason for differing from the Subordinate Judge who was of opinion that the letters were written by the 1st defendant especially as it is not denied that she did apply to the plaintiff for help in connection with her brothers purchasing the Voratla estate.

40. Mr. P. Seetharamayya who was Dewan of Pittapur from October 1910 to September 1913 states that about 3 of 4 months before his term as Dewan expired, defendants 27th witness C. Seetharamayya came to him and asked him to suggest to the plaintiff that the latter may make a gift of Rs. 21/2 lakhs to him as he wanted to clear some heavy debt in connection with an estate of which the Rani of Tuni was the mortgagee. This evidently refers to the Voratla estate litigation. He says that he referred Seetharamayya to the Raja as it was not a matter in which the Dewan had anything to do. The plaintiff states that the 1st defendant personally asked him about the pecuniary help shortly after the birth of his second son in October. The plaintiff sent no reply to these letters and he says that he never refused in so many words to accede to the request of the 1st defendant when she asked him for help personally. I have already referred to the evidence which shows that the 1st defendant entertained the idea of adopting the 2nd defendant about a year before the actual adoption.

41. Mr. Krishnaswami Chetti, defendants 9th witness, who was one of the leading vakils of this Court and who retired from active practice owing to hardness of hearing but who continued to practise in Chambers states that more than two months before the adoption took place he was consulted by Pakam Kuppiah and C. Seetharamayya on behalf of the 1st defendant as regards adoption. There is absolutely no reason to disbelive the evidence of Mr. Krishnaswami Chetti, who was a well known and highly respected vakil of this Court. So that it is clear that the 1st defendant before she had any reason to expect that the plaintiff would not accede to her request was taking steps to adopt the 2nd defendant.

42. So far as the Voratla estate is concerned, neither Rs. 21/2 lakhs nor any other sum was paid to the Tuni Rani and the letter that I have referred to (Ex. EE-5) shows that a weeks time was obtained for settlement and evidently by the beginning of January 1913 the compromise fell through and there was no necessity for the payment of any money to the Tuni Rani. The suit took its own course and ultimately there was a decree for a large sum. No portion of the Rs. 21/2 lakhs raised from the Maharaja of Venkatagiri was paid towards this decree. The contention that the adoption was merely a means to get Rs. 21/2 lakhs to pay the 1st defendants brothers in order to enable them to purchase the Voratla estate has no foundation.

43. The conclusion I have come to on this part of the case is that the 1st defendant who was an old lady and whose health was failing her from about two years before the adoption wanted to make an adoption, that when she conceived the idea of adoption the only near sapinda boy available was one of the sons of Ramakrishna, that Ramakrishna was not willing to give one of his boys in adoption as she was on friendly terms with the plaintiff, that ultimately at the instance of Kuppiah, Mr. Krishnaswami Chetti and the Maharaja of Venkatagiri, Ramakrishna was persuaded to give one of his boys in adoption, that the 1st defendants idea in adopting the boy was not to get Rs. 21/2 lakhs for the purpose of helping her brothers in connection with the Voratla litigation, that the unwillingness of the plaintiff to advance Rs. 21/2 lakhs was not the reason why she wanted to make the adoption, that after the adoption was resolved upon and settled and Ramakrishnas consent was got, questions arose as to the debts which she said she owed and that the arrangement whereby the adopted son agreed to give half the estate to the 1st defendant was the result of an offer from the adopted son as a means to enable her to discharge her debts.

44. I do not think the plaintiff has proved that the debts which were actually discharged by the 1st defendant were entirely the personal debts of her brothers. She no doubt obtained an advantage as the debts which she considered she had to pay were discharged; but it is not every personal benefit which the widow obtains that could invalidate the adoption. As I said before, she could contract with the adopted son or his guardian to enjoy the whole estate during her lifetime leaving nothing for the adopted boy till her death. Krishnan, J., was of opinion that her motive for adoption was not purely a desire to get an advantage for herself but that she was actuated by religious motives and also a desire for personal gain. Venkatasubba Rao, J., held that her motive was not corrupt.

45. So far as the adoption is concerned, it is a religious sacrament according to Hindu Law-givers as a marriage. The necessity for the adoption of a son in the case of childless Hindus is insisted upon as an act necessary for their salvation and is looked upon as very meritorious. It is in fact looked upon as so meritorious that in Bombay the authority of the husband is unnecessary as such authority according to the leading commentators may be presumed for so meritorious an act.

46. Secular motives do come into play and influence persons in making adoption. Where an adoption is made by a widow both in fulfilment of her religious duties and also for the purpose of getting a gain for herself, it seems to me the proper thing is to hold that the adoption would be valid while any arrangement for her personal benefit, if not within the limits actually allowed by law, would be void. No case has been cited where in such cases the adoption has been set aside; but the Court always confined itself to declaring the arrangement limiting the adopted sons rights voidable at his instance.

47. In Bhasba Rabidat Singh v. Indar Kunwar (1889) L.R. 16 IndAp 53 : ILR 16 Cal. 556, which was a case from Oudh (Northern India) the adoption was questioned on the ground that the widow agreed with the natural father that she should retain the whole estate during her lifetime. Though such an agreement would be valid in Southern India by virtue of a custom as decided by their Lordships of the Privy Council in the 50 Madras case above referred to, it would not be valid in other parts of India. Their Lordships of the Privy Council were of opinion that this did not render the adoption conditional and did not affect the rights of the adopted son, but they stated that even if it amounted to a condition on which the adoption was made, the condition would be void without invalidating the adoption. It has been argued for the appellant that where it is found that the widow was actuated by consideration of spiritual benefit to her husband in making the adoption, Courts cannot analyse her motives and see the proportion of the spiritual and secular motives. It is also argued that the question of a widows motive cannot be gone into when she had made an adoption. Reference has been made to Maynes Hindu Law, 9th edition, Articles 120 to 129 especially Article 128, page 170, and to Ramachandra Bhagavan v. Mulgi Nanabhai ILR (1898) Bom. 558, and Mahableshwar v. Durgabai ILR (1898) Bom. 199. As I find on the evidence that a corrupt motive has not been proved, it is unnecessary to discuss this aspect of the case. Were it necessary, I would incline to the view that the Court cannot set aside an adoption by going into consideration of the motives of the widow making the adoption.

48. I am of opinion that even if it is shown in this case that the 1st defendant wanted to get a personal benefit for herself, the adoption could not be set aside on that ground.

49. The next question is whether the adoption is invalid owing to the plaintiff having refused to give his consent to the adoption. It is now settled by their Lordships of the Privy Council in (1918) L.R. 45 I.A. 265 (Privy Council) , that the sapindas whose consent is necessary to validate an adoption by a widow are the nearest and not the remote ones. It is therefore unnecessary to refer to the previous decisions which leave it in doubt as to who are the sapindas that should be consulted.

50. At the time of the 2nd defendants adoption and the negotiations which preceded it, the nearest sapindas were Ramakrishna, the father of the boy arranged to be adopted and the plaintiff, assuming that the plaintiff was the aurasa son of the late Raja of Pittapur. The question as to the plaintiffs legitimacy was at that time undecided. Mr. Mackenzie, the District Judge, after a protracted trial and after considering the evidence of several doctors and expert witnesses had found that the plaintiff was not the son of the Raja of Pittapur. That finding remained unreversed as both the High Court and their Lordships of the Privy Council decided the case on the question of the will and the plaintiff herein being a persona designata. The 1st defendant acting under legal advice did not want to take the risk of deciding for herself whether the plaintiff was or was not the son of the late Raja and she applied to the plaintiff for his consent.

51. Exhibit EE-9 is a letter, dated the 2nd of February 1914. It runs as follows:

I am very anxious to adopt a son for securing a good end to my late husband, performing his ceremonies, etc., and perpetuating the progeny (line). Further, in adopting, I intend adopting Sri Krishnayya, the fourth son of Sri Rajah Rao Vekata Surya Mahipathi Ramakrishna Rao Bahadur, the adopted son of the late Raja of Pittapuram. But under the decree in O.S. No. 30 of 1886 on the file of the Sub-Court, Cocanada, and under the decree in the appeal against it in the High Court, it has been found that I have no authority from my husband to adopt. I therefore write this letter to you earnestly requesting your permission for me to adopt the said boy. Please to consider and reply soon. Please bestow some thought.

52. It is argued for the respondent that the 1st defendant did not really want to consult the plaintiff, and that the terms of the letter were not respectful as it was addressed to him as Zamindar of Pittapuram and not as Raja of Pittapuram. I see little force in this argument as the plaintiff himself when examined said that there was nothing wrong in the letter as it stood. This is what he says : "I see Ex. EE-9. I now read it. I am not prepared to say whether there was any impropriety or defect in the language or substance of this letter." To this letter written on the 2nd February the plaintiff sent a reply on the 11th of February (Ex. EE-11). The letter runs as follows:

The letter written by you on 2nd February 1914 reached me on 4th February 1914. I have come to know that you are not adopting with an honest purpose either for the spiritual salvation of your deceased husband or for the perpetuation of his line, but bearing spite against me for my not rendering pecuniary help to your brothers as requested by them and you, and with a view to put me to loss and for the selfish gain of all of you, you have intrigued with Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu who has been my longstanding enemy and arranged to adopt his son.

(2) That you have resolved upon making the adoption with the motive mentioned in paragraph 1 supra and have not applied for my consent with an honest mind will be evident from, the very fact that instead of asking for permission to adopt a suitable boy you wrote to me to say that you wanted to take in adoption the fourth son of Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu and were very desirous of having my consent for the same.

(3) Had you come to me and told me the necessity that has arisen for you to make an adoption and the reasons for adopting that boy, I would have been in a position to discuss with you about it in person and express my opinion to you.

(4) You, your brothers and Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu having joined hands in the manner set forth above in order to put me to loss, you and your brothers having made some arrangements for yourselves, as consideration for your agreeing to adopt his son, and you having given him some consideration for his according consent to you to make an adoption, and having thus decided upon the arrangements, you and your brothers went to Madras and being bent upon adopting that boy, you wrote to me the letter merely for the sake of formality and not with an honest desire to obtain my consent.

(5) In pursuance of the arrangement that was made by your late husband and my father, the late Sri Rajah Rao Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu, you were precluded by your husband from making an adoption.

(6) The consent given by Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu, for his own gain, to your adopting his son is not valid.

(7) Further, I being the aurasa son, Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur Garu, who is an adopted son has no authority to give the consent. It is therefore not possible to give you consent as desired in your letter. Please to consider.

53. To this, the 1st defendant sent Ex. EE-12, dated the 16th February 1914, denying that she was actuated by any corrupt or improper motive and stating that she is not precluded from adopting