1. As regards the gift set up by respondent, the Subordinate Judge discusses the evidence in support of it and comes to the conclusion that it is true and valid in paragraphs 103 to 105 of his judgment. The oral evidence is that of respondent’s witnesses 2, 4, 7 and 23 and the Subordinate Judge himself considers it worthless and on referring to it we see no reason to form a different opinion. The Subordinate Judge considers, however, that documents A and B may be taken to have operated as instruments of gift. Document A is a petition presented by appellant in March 1862 to the Tahsildar of Nannilum Taluq praying that Miras standing then in her name be transferred to that of respondent’s husband and the material words in it are, ‘I have adopted Alagasundara Mudaliar, natural younger brother of my husband, with my husband’s permission and appointed the said Alagasundara Mudaliar heir to all the villages, the Miras of which stands in my name’. Document B is a Sammathi patram or deed of consent to the transfer of Miras taken from her by the Tahsildar on the 20th March 1862 and it recites the adoption as one made by her with her husband’s permission but says nothing as to his appointment as heir. The words in A “appointed him heir” no doubt indicate an intention to transfer the property but they are not, in our opinion, sufficient to import an independent gift. Under Hindu law a widow is not competent to appoint an heir to her husband’s property though she is at liberty to make an adoption when she is authorized by her husband to do so and thereby to constitute the adopted son as heir and the reasonable construction to be put upon those words, following as they do, the recital of adoption, is that they are explanatory of the effect of the adoption made.
This view receives corroboration from the omission of these words as superfluous in Exh. B and from the fact that the appellant desired to give the respondent’s husband an absolute, and not merely a widow’s estate. Again, the property in litigation is of considerable value, and if an independent gift had been contemplated, a formal document would have been executed. Though respondent’s husband was ineligible for adoption owing to his relationship to his adoptive father as his brother, yet appellant might have counted upon the acquiescence of the family of her reversioners to which the adopted son belonged. In this connection it is noteworthy that Kaliyanasundara Mudali, the eldest surviving son of Bava Mudali, gave his own son Tyagaraja in adoption to Alagasundaram’s widow after his death. Moreover, the story of an independent gift which was not mentioned in the original plaint nor referred to on any previous occasion was probably an after-thought suggested by the remark made in the judgment of the Subordinate Court of Kumbakonam in O. S. No. 13 of 1884 that the transfer of Miras might be taken to amount to a gift. We are of opinion that the construction put by the Subordinate Judge upon Exh. A cannot be supported and that there is no reliable evidence of a gift as an independent transaction.
2. [Their lordships held that the prescriptive title set up by the plaintiff had been made out and therefore dismissed the appeal with costs.]