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Ganesan Minor by Guardian Vs. M. Ganapathy Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1947Mad440; (1947)2MLJ126
AppellantGanesan Minor by Guardian
RespondentM. Ganapathy Iyer and ors.
Cases ReferredNarasaraju v. Satyavatamma
Excerpt:
- - as i am now weak in my body and as i have no issue the undermentioned properties worth about rs. 4, 000 shall be enjoyed by me so long as i am alive and after my lifetime my wife narayani ammal shall take with absolute rights. if such an adoption is made and if after my lifetime there is disunity between my wife and the adopted boy my wife is to enjoy for her life a moiety, viz. 87/2. if i fail to make an adoption during my lifetime as aforesaid, my wife should adopt a boy who seems satisfactory to herself as aforesaid within one year of my death. he was very weak at the time and the will says that if he should fail to make an adoption during his lifetime, his wife should adopt a boy who seems satisfactory the himself as aforesaid within one year of his death......she should adopt any one of his nephews and if that was impossible she should within the next two years adopt at her own choice a boy from his agnatic relations and if that was possible she should take a boy from his own ghotra or a different ghotra, the first adoption to be made within 12 years as aforesaid. a nephew of the husband was adopted in the 12th year and the privy council held that the adoption was invalid because in making the adoption more than 11 years after her husband's death she was not acting in strict conformity with the authority given to her. the will directed the widow to adopt a boy from his agnatic relations during the next two years after the expiry of ten years after his death and the adoption of the nephew was in violation of the specific restriction as to the.....
Judgment:

Lakshmana Rao, J.

1. This second appeal arises out of a suit by the reversioners of one Venkatarama Iyer for recovery of his estate and the question for decision is whether the adoption of the minor first appellant by Venkatarama Iyer's widow Naravani Ammal is valid.

2. Venkatarama Iyer died without issue on 8th February 1925, leaving a resistered will, Ex D-1, dated 24th November, 1924, and Narayani Ammal adopted a boy named Nataraja on 19th February, 1925 under the authority conferred on her by the will. He died a bachelor at the age of i7 years on 4th September, 1942, and Narayani Ammal adopted the first appellant on 15th September 1944. She died three days later and the suit was filed soon after on the ground that the will gave no authority to make the second adoption.

3. The will is in Tamil and the agreed translation is as follows:

As I am now weak in my body and as I have no issue the undermentioned properties worth about Rs. 4, 000 shall be enjoyed by me so long as I am alive and after my lifetime my wife Narayani Ammal shall take with absolute rights. I am contemplating an adoption during my lifetime in order to ensure spiritual benefit for myself in after-life and if I succeed in obtaining the boy to my satisfaction I myself will make an adoption. If such an adoption is made and if after my lifetime there is disunity between my wife and the adopted boy my wife is to enjoy for her life a moiety, viz., 75 cents, in 1 acre 50 cents of S. No. 87/2. If I fail to make an adoption during my lifetime as aforesaid, my wife should adopt a boy who seems satisfactory to herself as aforesaid within one year of my death. If she fails to make such an adoption she is to take all the above properties absolutely with all rights of alienation, etc.

The reversioners claimed that the authority to adopt was exhausted by the first adoption and even otherwise the second adoption was invalid as it was made more than a year after the death of the husband. The District Munsiff held against the reversioners on both the points and dismissed the suit. On appeal the District Judge agreed with the District Munsiff on the first question, but held that the second adoption was invalid because it was made more than a year after the death of the testator. He decreed the suit and hence this second appeal.

4. It is common ground that the validity of the adoption of the first appellant depends on the intention of Venkatarama Iyer to be gathered from the terms of the will and the surrounding circumstances. Venkatarama Iyer was a Hindu, Brahmin, aged about 62 years on the date of the will and it is expressly stated in the will that he was contemplating an adoption during his lifetime in order to insure spiritual benefit for himself after his death. He was trying to secure a boy to his satisfaction and the provision made for the wife in the event of disagreement between her and the boy adopted by him shows that he hoped to make the adoption himself. He was very weak at the time and the will says that if he should fail to make an adoption during his lifetime, his wife should adopt a boy who seems satisfactory the himself as aforesaid within one year of his death. The object and purpose of the authority given by him was to secure his spiritual benefit and as pointed out by the Privy Council in Suryanarayana v. Venkataramcma where it is so it would be unreasonable to hold that an accident such as the early death of the boy first adopted should be allowed to frustrate the fulfilment of his object and preclude the widow from making another adoption in the absence of any legal impediment in doing so. The Courts below were therefore right in holding that the authority to adopt in this case was not exhausted by the first adoption and considering that the unifying rites called ' the Sapindi Karana Sradha ' have to be performed at the earliest on the 12th day and the latest one year after death, the direction that the wife should make the adoption within one year after his death is attributable with more reason to his anxiety for the due performance of his annual funeral rites than to any intention to set a time limit for the exercise of the authority by the widow. The spiritual benefit to be derived from an adoption is not exhausted by the performance of the ceremonies for one year, and as pointed out by the Privy Council in Suryanarayana v. Venkataramana the contention that the second adoption was supererogatory is opposed to the general principles of Hindu Law. The authority was not restricted to a single adoption and the time limit prescribed for the first adoption in order to ensure the performance of the annual funeral rites cannot be extended to a second or further adoption which becomes necessary to secure the fulfilment of the object and purpose of the authority to adopt given by the husband. The decision of the Privy Council in Bhupendra Mohan Roy v. Puma Sashi Debt (1939) a M.L.J. 479 : 1939 L.R. 66 IndAp 265 : I.L.R. (1939) Cal. 486 (P.C.) is not in point. In that case by Clause (2) of the will authority was given to the widow to make five adoptions successively and Clause (3) provided that within ten years after the death of the testator she should adopt any one of his nephews and if that was impossible she should within the next two years adopt at her own choice a boy from his agnatic relations and if that was possible she should take a boy from his own Ghotra or a different Ghotra, the first adoption to be made within 12 years as aforesaid. A nephew of the husband was adopted in the 12th year and the Privy Council held that the adoption was invalid because in making the adoption more than 11 years after her husband's death she was not acting in strict conformity with the authority given to her. The will directed the widow to adopt a boy from his agnatic relations during the next two years after the expiry of ten years after his death and the adoption of the nephew was in violation of the specific restriction as to the class of boys to be adopted during that period. The nephew was not eligible for adoption during those two years and the decision in Narasaraju v. Satyavatamma : AIR1939Mad187 has no bearing. The intention of the testator there .was found to be that his pregnant widow should have power to adopt only if she did not give birth to a daughter and a daughter was born to her. The daughter died later and the widow adopted a boy. It was held that the authority was not intended to be given in the contingency that occurred.

5. In this case the authority to adopt was not exhausted by the first adoption and there was no time limit set for the second adoption should it become necessary for the fulfilment of the object and purpose of the authority to adopt, beyond a year after his death. It follows that the adoption of the first appellant is valid and the decision of the District Munsiff is correct.

6. The second appeal is therefore allowed and the decree of the District Munsiff is restored with costs here and before the District Judge. (Leave refused.)


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