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Madras High Court
Somasundara Mudaly By His … vs Duraisami Mudaliar on 13 February, 1903
Equivalent citations: (1903) 13 MLJ 283


1. The appellant (1st defendant) alleges that the adoption was made under an authority to adopt given in the so-called will, Exhibit 1. This document is in no sense a will, i.e., a testamentary disposition of property (Vide Section 3, Act V of 1881). It is an authority to adopt and nothing else and the direction therein given to put the adopted son into possession of the property cannot be construed as a devise of the property. It is simply a statement of the consequences that should legally follow on the adoption. Musmmat Bhoobun Moyce Debia v. Ram Kishore Acharjee Chowdhry 10 M.I.A. 279 at. 312

2. The authority to adopt being in writing and not contained in a will, its registration is compulsory, and, unless registered, it is inoperative to confer such authority (Sections 17 and 49, Indian Registration Act 111 of 1877). We may add that there is no evidence except Exhibit I to prove that authority was given, assuming that such evidence could be adducedan assumption that is doubtful, the question depending on whether the word “grant” in Section 91 of the Indian Evidence Act means a grant of property only or refers to other grants also. There being therefore no evidence that any authority to adopt was given, the adoption, if it took place, was invalid.

3. We therefore dismiss the appeal with costs.

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