1. The only substantial question in this appeal is whether the minor defendant's natural father Thimmayya was entitled to represent his estate after the minor's adoption. If so, there can be no doubt that the suit promissory note Exhibit C is binding on the estate and that the decree of the lower appellate court must be upheld.
2. The facts are these : Mr. M. Suryanrayana Rao, sole proprietor of the Waltair estate died on the 31st March, 1904 leaving a registered will. This Will is not exhibited but its provisions are admitted to be as set out in the plaint paragraphs 1 to 3. That is to say, it authorised his widow to adopt the minor defendant and directed that until the adoption should be effected, defendant's natural father Thimmayya should manage his estate as executor under the will and that after the adoption he should be the guardian of the minor defendant until the latter attained majority. Defendant was duly adopted on the 12th December, 1908. Subsequently Thimmayya, describing himself as the natural father and guardian of defendant executed the suit promissory note.
3. Appellant argues that, once the adoption was effected the minor's adoptive mother, and not Thimmayya, was his natural guardian, and that the appointment of a testamentary guardian to manage the minor's estate is illegal.
4. The first proposition is undeniable; for the second, reliance is placed on the Full Bench decision of this Court in Chidambara Pillai v. Rangaswami Naicker I.L.R.(1918) Mad. 561 and on that of the Privy Council in Pratap Shiv Singh v. Agar Singh Raisinghji I.L.R.(1918) 43 Bom. 778.
5. In the former case it was held that the sole adult coparcener of a Mitakshara family consisting of himself and minor coparceners is not competent to appoint a testamentary guardian to the co-parcenary properties of the minor coparceners.
6. This, would, of course, apply if Mr. Suryanarayana Rao had a natural born son or a son already adopted at the time of his death; he could not in such circumstances appoint a testamentary guardian to manage the son's property after his death. It is argued and I think, correctly, that the same principle would apply in the case of a posthumous son. Lastly it is said that a son adopted by a widow under authority stands in exactly the same position as a posthumous son and that in his case also the appointment of a testamentary guardian is incompetent. It is in this connection that their Lordships of the Privy Council are quoted in Pratap Shiv Singh v. Agar Singh Raisinghji I.L.R(1918) . 43 Bom. 778 as laying down that the rights of an adopted son unless curtailed by express texts arein every respect the same as those of a natural born son and that an adoption so far as the continuity of the line of inheritance is concerned, has a retrospective effect.
7. This process of argument is attractive; but we must be on our guard not to follow it too blindly. The remarks of their Lordships of the Privy Council were made without any reference to the question before us; and the propriety of extension of the doctrine in Chidambara Pillai v. Rangaswami Naicker I.L.R. (1918) Mad. 561 to a case like the present one requires careful consideration.
8. The minor co-parceners in that case were all in existence at the time of the testator's death. I was a member of that Bench, and can say that with myself and Ibelieve with my learned brothers, a consideration of great weight was the undisputed fact that the testator had no power of disposition over the property for which he purported to appoint a manager. As Seshagiri Aiyar, J. said at p. 575 'I can see nothing in the judgment of the Board in that case to warrant the contention that a person who cannot deal with a species of property by a testamentary document can devise the right of management over such property.' This judgment of Seshagiri Aiyar, J. was concurred in both by Coutts Trotter, J. and myself and in my own brief judgment I quoted a remark of Sadasiva Aiyar, J. in another case to the same effect as summing up the whole matter.
9. Now in the present case it is most important to note that at the time of the will and right up to the testator's death the testator had absolute power of disposition over the property. There was no co-parcener to share it with him. Up to the moment when the breath left his body he could cancel this will and execute another bestowing the property where he would (subject of course to rights of maintenance). If his wife had been pregnant at the time this power of disposition might have been defeated by the subsequent birth';' of a son irrespective of any expression of his wishes, but a subsequent adoption could only take place on authority to be given by himself or as I would put it, by his own expressed desire.
10. If it was optional with him to authorise the adoption it was surely competent to him to make the authorization conditional on the management of the property during the adopted son's minority, being entrusted to a suitable person in whom he had confidence. This is what he seems to me to have done in the present case : and no authority has been quoted against his power to do so. The only case we were referred to was Bhyri Appanna v. Bhyri Chinnama (1920) 12 L.W. 17 in which the testator purported to make a disposition of property adverse to the adopted son to take effect after the adoption in a certain contingency, entirely unconnected with the adoption itself. That disposition was held to be illegal; but the case was obviously not on all fours with the present case.
11. Looking to the fact that the appointment of a testamentary guardian here only extends to property over which the testator had complete power of disposition at the time of his death and does not fetter, or contravene any interest in existence either actually or potentially (as in the case of a posthumous son) at the time of his death, there seems to be no reason why it should not be recognised.
12. I would therefore dismiss the second appeal. Plaintiff was not represented but Mr. Satyanarayana was good enough to give us the benefit of an argument on her behalf as arnicas curiae.
13. I agree with the judgment just pronounced by my learned brother but as the matter is of some importance and was, owing to the kind assistance of Mr. B. Satyanarayana appearing as amicus curiae fully argued before us, I venture to add a few words of my own.
14. The facts have been fully set out by my learned brother. It is not necessary to refer to the grounds (save one) on which the suit pronote was attacked. It is sufficient to say that I agree with the lower appellate court as to these. The argument before us was to the effect that Thimmayya was incapable of being appointed guardian by will to the adopted minor son of the testator owing to the fact that immediately on the adoption taking place the status of the adopted son became in all respects that of a natural born son and that consequently there was aco-parcenary between the testator and the adopted son which prevented the former from appointing a testamentary guardian to the latter on the authority of Chidambaram Pillai v. Rangaswami Naicker 34 M.L.J. 381 . In my opinion the case before the Full Bench was different from the present. There at the death of the testator a co-parcenary was already in existence and the testator had no authority to dispose of the property which belonged at the time of his death to the co-parcenary. My learned brother who was a party to the decision adopted a remark of Sadasiva Aiyar, J. in Chidambaram Pillai v. Veerappa Chettiar (1917) 6 L.W. 640 in which the learned Judge distinctly based his observations on the fact that the testator could not deal with the property by his will. In the present case the testator was the last surviving coparcener and admittedly had power to dispose of the property by his will. He might or might not direct by his will his widow to adopt. It seems to me a large and dangerous extension of the doctrine as to the status of an adopted son laid down by this Court in Vaidyanatha Sastri v. Savitri Ammal 33 M.L.J. 387 and by their Lordships of the Privy Council in Pratap Shiv Singh v. Agar Singh Raisinghji I.L.R(1918) . 43 Bom. 778 to say that a direction to adopt contained in a will covers the property over which the testator would otherwise have had full powers of disposition, into co parcenary property so as to take away the right of the testator to appoint a testamentary guardian to an adopted son if and when adopted.
15. It may further be remarked that Vaidyanatha Sastri v. Savitri Ammal 33 M.L.J. 387 was a case of the right of an adopted son to set aside during the life of the widow an alienation by her not binding upon him. At p. 96 Kumaraswami Sastri, J. remarked 'Though the fiction of constructive pregnancy through permission to adopt has been exploded by a series of decisions the adopted son on his adoption becomes the son and heir of his father and the adoption has retrospective effect in so far as it divests wholly or partially the estate of all persons whom he would have either excluded from the. inheritance or shared with'.I would submit that that was all that was required to dispose of the question referred to the Full Bench and that the wider remark of the same learned Judge on the same page is obiter.
16. The Bombay case in the Privy Council turned on the question as to whether an adoption continued the line of a grantee of a Jivai right to be enjoyed as long as the grantee's male line lasted and it was held it did; their Lordships observing (page 792) ' again it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son and that an adoption so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. 'This seems to me to distinguish the case from the one before us and to be no warrant -for extending the doctrine as stated above. If, as I hold, it was competent for the testator to appoint a testamentary guardian to his adopted son, it was also competent for him to do so on conditions. In Lakshmi v. Subrahmanya I.L.R(1889) . Mad. 490 the decision turned on the inference that the adopted son's natural father on adoption, tacitly agreed to the arrangement. In Jagannatha v. Papmma 3 M.L.J. 193 it was held that an adopted son was not bound by an agreement entered into by his adoptive mother and his natural father. The learned Judges there referring to Lakshmi v. Subrahmanya I.L.R. (1889) Mad. 490 say : 'The Madras case rests on the principle that the adoptive father inasmuch as he can, before adoption, dispose of his property as he 'chooses, can at the time of adoption impose suchconditions as he thinks fit upon the enjoyment of his property by the adopted son '. In Visalakshmi' Ammal v. Sivarama Aiyar 14 M.L.J. 310 the Full Bench of this Court said ' (per Benson, J.) at p. 5S7 ' but it would seem that a fair and reasonable disposition of the property is not essentially repugnant to Hindu Law, or the purposes for which adoption is allowed, and is nowhere forbidden by that law. Such dispositions are commonly made, and are upheld by the authority of the caste and consciousness of the people. In these circumstances, I think that the Courts ought not to refuse to recognise them as binding on the minor, for whose benefit the adoption, coupled with the agreement as to the disposition of the property, was really made.' Thesecases were not referred to in the argument before us, but the appellant's vakil quoted the decision in Bhyri Appamma v. Bhyri Chinnamma (1920) 12 L.W. 17 in his favour. There a Hindu testator directed his senior widow to adopt and provided that if after adoption disputes arose between the senior widow and the adopted son on the one side and the junior widow on the other, the latter was to be given certain property. It was held that the junior widow could not recover as against the adopted son in the absence of an agreement with the natural father of the adopted son at the time of adoption. It will be observed that the disposition of the property had nothing whatever to do with the adoption nor was the adoption in any way conditional. The direction to adopt did not impose any restrictions on the rights in the property to be taken by the adopted son. All this seems to me to clearly distinguish the case from the one before us.
17. For these reasons I agree that the second appeal must be dismissed.