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Madras High Court
Erram Reddy Chenchu Krishnamma vs Maram Reddy Lakshminarayana And … on 6 May, 1927
Equivalent citations: AIR 1928 Mad 271, 108 Ind Cas 202
Author: Phillips


Phillips, J.

1. In this case the appellant is the widow of one Chenchu Ranga who died in 1902, leaving a will, Ex. U. Reddi. Under this will he made certain bequests to his brother’s wife and sister and left the rest of his estate to his widow with absolute rights. He also gave authority to the widow to adopt a son if she wished. It has been found by the lower Court that she exercised this power and adopted defendant on 2nd April 1911. The factum of adoption has been disputed, but, apart from oral evidence which has been believed by the lower Court, there are several documents in which the plaintiff has mentioned the fact of adoption, namely Ex. 1 to V, J, X and XVI series. Of these the only registered document is Ex. J. Ex. X and X (a) show that in 1918 a lawyer’s notice was issued on behalf of the plaintiff in which the adoption is referred to. D. W. 9 is the High Court vakil who issued this notice, and he asserts that the plaintiff informed him of the adoption and asked the notice to be issued. The only evidence on the plaintiff’s side is. as would be expected, negative evidence, that is to say, that from 1911 to 1920 she executed a number of documents in her own name and not as the guardian of her adopted son, these documents dealing with her husband’s estate. This negative evidence is quite insufficient to rebut the documentary and oral evidence on the other side which has been carefully examined in the lower Court. I therefore agree in the finding that the plaintiff did actually adopt the defendant.

2. The main question at issue is whether the defendant has by that adoption acquired a right to his adoptive father’s estate. The question of the right of the adopted son to defeat the dispositions of property made at or before the time of adoption by the father has formed the subject-matter of many reported cases to which we have been referred. In this case I think it is unnecessary to deal with those cases in detail, for in a very recent decision of the Judicial Committee which is as yet unreported, the question has been carefully considered with reference to the prior decisions. This decision of the Privy Council is in Privy Council Appeal No. 65 of 1925, on appeal from this Court whose judgment is reported in Krishnamurthi Aiyar v. Krishnamurti Aiyar A.I.R. 1925 Mad. 932. The question at issue in that case was not exactly the same as the present, but it related to the validity of the will of one Ramakrishna Iyer who executed it at the same time that he adopted a son and simultaneously the natural father of the adopted son executed a deed agreeing to the alienations made under the will. Differing from this Court the Judicial Committee held that the adoption defeated the provisions of the will. After considering the case-law both in Bombay and in Madras,. their Lordships observe that it is not possible to reconcile all the decisions and still less the reasons on which they have been based; and they proceed to examine the matter on principle in the following; words:

When a disposition is made inter vivo? by one who has full power rover property under which a portion of that property is carried away, it is clear that no rights of a son who is. subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For will speaks as at the death of the testator, and the property is carried away before the adoption takes place.

3. Applying this principle to the present case it is clear that the disposition in favour of the appellant would not be displaced by the subsequent adoption of a son, for it became vested in her at the death of the testator. The principle seems at first opposed to the large fiction of adoption whereby an adopted son, although the adoption is made after the father’s death, is deemed to stand in the place of a child actually begotten by the father: vide Tagore Case Ind. App. Supp. Vol. at p. 67. This doctrine would imply that the adopted son takes by survivorship as a member of his father’s family, and if this were applied with all its concomitants it would appear that any disposition of property made to take effect at the father’s death would not be binding upon him, but the Judicial Committee expressly state that it is so binding and this apparently is based upon the principle that a sole owner is entitled to dispose of his property as he pleases and that when once he has done so the adopted son cannot interfere because the legal fiction of the adoption is not allowed to prevail against the rights already vested in other persons, although, in the case of provisional vesting as it has been called, the adopted son does divest the owner: vide Virada Pratapa Raghunada Deo v. Sri Brozo Krishore Patta Deo [1878] 1 Mad 69, I think the principle may also be supported on the ground that when the estate has vested in another person the adoption becomes invalid. It has long been held that where an estate has been vested in a full owner fully capable of himself continuing the line of succession, the power to adopt to the previous owner is exhausted. This principle was first laid down in Mt. Bhoobun Moyee Debia v. Ram Kishore [1865] 10 M.I.A. 279. In that case a man died leaving his widow with power to adopt. She adopted a son who died leaving a widow and no issue. His mother then adopted another son as authorized by her husband, but it was held that inasmuch as the estate had vested in her first adopted son he was the last full owner and had already succeeded as heir and the subsequent adoption by the mother was invalid. There is however a remark at p. 311 which is relevant here:

If Bhowane Kishore (the first adopted son) had died unmarried his mother…would have been his heir and the question of adoption would have stood on quite different grounds. By exercising the power of adoption she would have divested ho estate but her own and this would have brought the case within the ordinary rule.

4. That remark is very much in point here where the estate has become fully vested in the widow herself. Applying the principle of Mt. Bhoobun Moyee Debia v. Ram Kishore Achraj Chowdhury [1865] 10 M.I.A. 279 the subsequent adoption would not operate to divest the estate which had become fully vested in her and to which she had the power of fixing the succession. This principle was also laid down in Ramakrishna v. Shamrao [1902] 26 Bom. 526 and, if applied here, it would appear that the widow is entitled to the property in preference to the adopted son, but the remark above quoted from the judgment in Mt. Bhoobun Moyee v. Ram Kishore Acharj Chowdhury [1865] 10 M.I.A. 279 suggests other considerations which require discussion, and it will be necessary to consider the provisions of the will Ex U. After leaving the estate absolutely to his wife the testator adds:

If my wife desires at any time to adopt a boy, she can adopt any boy whom she likes.

If the boy adopted is not to have any rights at all the provision appears to be futile and must be interpreted in the manner intended by the testator, so long as the interpretation is not inconsistent with the language of the will. the testator can hardly have contemplated the adoption of a boy who would have to perform the spiritual duties enjoined on him without providing for him an estate to enable him to perform these duties. It seems to me that we must therefore read into this will by necessary implication a provision that if an adoption is made by the widow, who is given a free choice, such adoption should be to the estate of the testator which was until then in the enjoyment of the widow. She was allowed to choose whether she would have an absolute estate and make-no adoption, or else adopt a son to her’ husband and herself who should enjoy the whole property. This view is further supported by the next clause in the will which reads:

If per chance my wife dies previously, my sister Seshamma shall get the entire property passed to my wife and she shall enjoy the same as she likes.

5. The testator makes full provision for the devolution of the property in case of there being no adoption, but makes no such provision in the case of adoption. This can only be explained on the assumption that the testator intended that if an adoption was made the whole property should pass to the adopted son indue course of law and, therefore, no further provision was necessary. As the widow has made the adoption she cannot now be heard to say that it has no effect at all. The only person that is divested by the adoption is the widow herself and there is no equitable ground on which the vesting in her can be held to defeat the rights given by law to the adopted son. In this view I agree with the lower Court that the adopted son is the owner of the whole estate and that consequently the plaintiff’s suit must fail.

6. The question as to whether any distinction should be drawn between ancestral and self-acquired properties does not arise in the view I have taken of the case. The appeal is accordingly dismissed with costs and the appellant is directed to pay the Court-fee payable to Government.

Srinivasa Aiyangar, J.

7. With the conclusion arrived at by my learned brother in the judgment just delivered, and with the reasoning on which the same is based, I entirely agree. No doubt, so far as the present case is concerned, the statement of the law by their Lordships of the Judicial Committee in the recent case referred to by my learned brother may be contended to be merely obiter dictum, but there can be no doubt whatever that on the principle of the thing it cannot be that a person who is the full and absolute owner at the moment of his death cannot validly dispose of his property by will merely because he has given permission to his widow to make an adoption. Their Lordships, in view of the theory of the adoption of a son by the widow to her deceased husband relating back to the time of death of the person to whom the adoption is made being only a legal fiction and of the fact that such adoption is only a subsequent legal act, have in clear and indubitable terms laid it down that in such cases the will must take effect.

8. The result then is that the adopted son can, if at all, only take under the will and not de hors the will. The widow, the plaintiff in the case, is the residuary legatee under the will. If the will was an ordinary mofussil will and there were not with regard to the bequest in favour of the widow clear words giving her absolute powers of disposition, there would have been no difficulty in the case. For then, as pointed out frequently by their Lordships of the Judicial Committee in construing a will of a Hindu testator (not governed by the Hindu Wills Act), it might be assumed that a bequest given to his widow is only of a widow’s estate unless there is in the will some indication to the contrary.

9. If the contention on behalf of the appellant should be accepted it follows that the widow of the plaintiff having an absolute right over the estate or the part of it bequeathed to her would be entitled also to dispose of it in any manner she pleases either inter vivos or by will. There can be no doubt whatever, as frankly conceded by Mr. Varadachariar for the appellant, that this could not have been the intention of the testator, But he argued that the intention of a testator should be gathered only from the. instrument itself. There are no words or expressions in this instrument to indicate any intention on the part of the testator to divest the widow and vest the property in the adopted son on the adoption being made.

10. But the point to start from with respect to a Hindu testator giving his widow permission to adopt is that the adopted son should as far as may be in the same position as a natural son, that is to say, perform his funeral and other ceremonies and take his estate. A Court of law can recognize an adoption only for the purposes of succession to an estate and not merely for the performance of ceremonies. I for my part am not sure whether an adoption can be held valid if there is no question of any inheritance to property. A widow adopting a son to her husband must be regarded, as by that act, having regard to the ordinary notions of Hindu law and Hindus, to have placed herself in the same position in which the parties would have been if the adopted son was a natural born son and the testator had died intestate in respect of part of the estate in her hands got by her husband.

11. These considerations may, and it seems to me must, be borne in mind in construing the will of a Hindu. So doing, to my mind, it seems to be clear that the bequest of the estate to the widow with absolute powers should be regarded, only as a provisional bequest subject to the exercise of the power to adopt given by the will. As pointed out in the judgment of my learned brother on the election by the widow to exercise the power and make an adoption, the provisional bequest ceases and the implied intention of the testator, that from the date of the adoption the adopted son should represent him and his estate, should take effect.: No doubt, having regard to the large powers of disposition given to the widow, the adopted son may obviously be unable to question any act of management or alienation made by the widow, but I agree that so far as the estate in the hands of the widow at the time of the adoption the provisional bequest in favour of the widow ceases and becomes vested in the son adopted. I therefore agree that the appeal be dismissed with costs.

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