1. This is an appeal against the decision of the District Judge who has decreed in favour of the plaintiff's right to succeed to the ancient zamindari of Pittapur in the Godavari District, The plaintiff claims as the adopted son of the late Rajah of Pittapur. As such he claims to recover the estate and effects of his adoptive father. The appellant alleges himself to be the natural-born son of the late Rajah, it being said that his birth took place in the month of October 1885--some twelve years after the date of the plain tiff's adoption. The adoption of the plaintiff in 1873 is admitted, The defence is rested on two independent grounds: Firstly, it is said that the appellant is entitled to succeed in virtue of his being the natural-born and legitimate son of the deceased Rajah by his first wife Mangayamma, and secondly, it is said that the late Rajah left a will bequeathing to the appellant practically his whole property, making some provisions for the adopted son and other members of the family.
2. The District Judge has found in favour of the plaintiff' with regard to both these points. He has found that the appellant is not the son of the late Rajah nor of the Rajah's wife. He has also found that, although the late Rajah did make three wills, all being to the same effect, so far as the question in this case goes those wills are not valid and operative as against the plaintiff. Mr. Bhashyam Ayyangar, who argued the ease on behalf of the appellant, was prepared to impugn both these findings. But, as he was satisfied with the disposition of property made in the Rajah's wills, he was content with a decision on the question of their validity if that question was decided in his favour. His position was that, whether his. client was the son of the late Rajah or not, he was entitled to the Rajah's property as bequeathed under the wills. We proceed then to consider whether these wills of the Raja are valid against the plaintiff. That the three wills were duly executed by the late Rajah on the 16th February 1889, 7th September 1889, and 17th March 1890, respectively, is a fact found by the District Judge and not disputed, It may be a question whether the last of these three wills supersedes the other two The third issue relates to this question, and it is one which may have to be decided in some future suit, inasmuch as there is a variance between the gifts made in the first two papers and those made in the last. For the purpose of the present case it appears to us unnecessary to decide the question, inasmuch as there is a complete disposition of the property in favour of the appellant as well under the last will as under the first two. The plaintiff, the present respondent, impugns these wills on several grounds in order to avoid the application of the principle laid down by the Judicial Committee in Sartay Kuari v. Deoraj Kuari I.L.R. 10 All. 272 . It has been alleged on behalf of the respondent that the zamindari of Pittapur is not an impartible zamindari, and further that if it be an impartible zamindari, it is a zemindari, which, according to the custom or in virtue of the tenure upon which it is held, is inalienable. The sixth and eighth issues were framed with reference to these contentions. . With regard to the question of impartibility (the sixth issue), the finding of the District Judge is in the appellant's favour. He finds that the property comprised in schedules I and II, that is, the zamindari and the accretions thereto, are impartible. We were referred by Mr. Bhashyam Ayyangar to numerous documents, proving, in our opinion, beyond all doubt that the estate has always been regarded as impartible. In family arrangements made in 1845 and 1869 (Exhibits CCIX and CCCVII) it was so treated. In the course of the descent which is traced back for several generations to the original holder (Exhibit CCCLXXI) there are several instances in which, on the death of the holder of the zamindari, there was a plurality of legal heirs, and yet only one succeeded to the estate. The zamindari was treated as admit tedly impartible in the litigation to which the present plaintiff was a party (Exhibits CCLXXXIV and XII). It is not necessary, however, to elaborate this point, because the Advocate-General who appeared for the respondent practically abandoned it.
3. Upon the contention raised by the eighth issue that the zamindari is by custom or in virtue of its tenure inalienable, the District Judge finds that the zamindari was in its origin a military or feudal estate. The only evidence in support of this finding to which we were referred consists. of statements by the late Rajah that he placed at the disposal of the Government in 1879-1880 some armed men on account of the disturbance in Rumpa There is no evidence as to the circumstances under which this was done. It is suggested by the Advocate-General that there may be more evidence as to the nature of the tenure in the possession of the Court of Wards, and that they ought to have disclosed it to the Court. The answer to this is that the burden of proving that the estate was held by military or quasi feudal tenure lay upon the plaintiff, and that it was competent to his advisers to elicit from the Court of Wards any information with regard to the history of the zamindari which might be in their possession. Apart from the suggestion that the zamindari was held on military tenure, it is not contended that there was any evidence to prove that the zamindari was by custom inalienable. On the other hand, Mr. Bhashyam Ayyangar refers to numerous instances in which grants in perpetuity of portions of the zamindari have, from time to time, been made (Exhibits CCLXXIX an DQ series). The Exhibits marked CCLXXIX relate to such alienations priord the permanent settlement; the others are subsequent thereto. As, in our opinion, there is no evidence that the estate was ever held on military tenure, it is not necessary to consider whether the nature of the tenure--if it had boon military in its origin--would have been affected by the permanent settlement of the estate under Regulation XXV of 1802, For these reasons we have come to the con clusion that the District Judge was wrong in his finding of fact upon the eighth issue.
4. The question now follows whether the estate being without doubt impartible and not shown to be inalienable either by custom or otherwise, the principle laid down in the case above cited is applicable. It was decided in that case that the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is so connected with the right to a partition that it does not exist where there is no right to a partition. In the absence of co-ownership their Lordships held that there was no restraint upon the father's power of alienation. The case has been considered more than once by a Division Bench of this Court, and there can be no doubt that we are bound to act upon the doctrine explicitly laid down by the Judicial Committee. See Beresford v. Ramasubba I.L.R. 13 Mad. 197 and Sivasubramania Naicker v. Krishnammal I.L.R. 18 Mad. 287. There are, it is true, cases prior to 1888 in which expressions were used which point to another view of the law: Katama Natchiar v. The Rajah of Shivagunga 9 M.I.A. 543 Neeliskito Deb Burmono v. Beerchmider Thakoor 12 M.I.A. 523 Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora 13 M.I.A. 333 Maharani Hiranaih Koer v. Baboo Ram Narayan Sing 9 B.L.R. 274 Sivagnana Tevar v. Periasami I.L.R. 1 Mad. 312; s.c. sub-nom. Periasami v. Periasami L.R. 5 IndAp 61 . But we must now take it that in those cases as well as in the later case of Jogendro Bhupati v. Nityanand Man Sing I.L.R. 18 Cal. 151 a distinction is to be made between a matter of succession by inheritance and a question of alienability. This distinction is clearly marked by the Judicial Committee itself in Sartaj Kuaris caso I.L.R. 10 All. 272. The decision is a clear authority to the effect that the Baja could legally have alienated the whole or any part of the estate by gift or otherwise during his life-timee. It is contended, however, that what a Hindu can alienate by gift inter vivos he cannot always alienate by a testamentary disposition. The Advocate-General combated the proposition that a Hindu can alienate by will all that he can dispose of by gift inter vivos. There is a strong body of authority in support of the proposition that the two powers are co-extensive, Vallinayagam Pillai v. Pachche 1 M.H.C.R. 326 Ganendra Mohan Tagore v. Upendra Mohan Tagore 4 B.L.R. O.C.J. 103 Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 B.L.R. 377 Na galutchmee Ummalv, Gopoo Nadaraja Hetty 6 M.I.A. 309, Baboo Beer Perlab Sahee v. Maharajah Rajender Pertab Sahee 12 M.I.A. 1. Cases were cited in which learned Judges have thrown doubt upon the universality of this proposition, Kumara Asima Krishna Deb v. Kumara Kumara Krishna Deb 2 B.L.R. O.C.J. 11 Krisknaramani Dasi v. Ananda Krishna Boss 4 B.L.R. O.C.J. 231 Tara Chand v. Reeb Ram 3 M.H.C.R. 50 Gooroova Batten v. Narrainasawmy Butten 8 M.H.C.R. 13. The weight of authority is, however, strongly in favour of the proposition above mentioned. In Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee 12 M.I.A. 1 the Judicial Committee say as follows: 'Decided cases too numerous to be now questioned have determined that a testamentary power exists and may be exercised at least within the limits which the law prescribes to alienations by gift inter vivos.' An attempt was made to show that there wore cases in which a Hindu could not bequeath by will what he could give away inter vivos, and the case of a Hindu widow disposing of her savings was cited as an instance. It is answered that the question of a widow's right to dispose of her property by will depends upon the nature of the property--whether it is such that she could give it away by gift inter vivos. No ease has been cited in which a widow has been held incapable of bequeathing by will property which she could othorwise legally dispose of. No principle is suggested on which a distinction can be rested between the extent of the power of giving by will and of giving inter vivos.
5. The cases relating to the disposition by will of an undivided share of a coparcenary property, really support the proposition that the powers of giving and bequeathing are co-extensive, In Villa Butten v. Yamenamma 8 M.H.C.R. 6 it was hold that a Hindu could not alienate by will his undivided share of coparcenary property, and thus defeat his son's coparcenary right. When that case was decided the view, since overruled, Baba v. Timma I.L.R. 7 Mad. 357 was entertained that a Hindu, under like circumstances, could make a gift inter vivos of his undivided share of family property. Dealing with these decisions the Judicial Committee in Lakshman Dada Naik v. Ramchandra Dada Naik I.L.R. 5 Bom. 48 use the following language: 'The reasons for making this distinction between a gift and a devise are that the coparcener's power of alienation is founded on his right to a partition; that that right dies with him; and, that, the title of his co-sharers by survivorship vesting in them at the moment of his death, there remains nothing upon which the will can operate.' In Bombay it should be mentioned, a different view as to a coparcener's power of disposition had been taken. The High Court there had held that a coparcener could not either give or devise his share without the consent of his co-sharers. Referring to this the Judicial Committee go on to observe 'Their Lordships do not think it necessary to decide between the conflicting authorities of the Bombay and the Madras High Courts in respect of alienations by gift, because they are of opinion that the principles upon which the Madras Court has decided against the power of alienation by will are sound, and sufficient to support that decision.' The doctrine here approved, that it is the right to a partition which puts a restraint on the coparcener's power of alienation, is the very doctrine enunciated in Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 . The case of Lakshman Dada Naik v. Bamachandra Dada Naik I.L.R. 5 Bom. 48 decides that, whore there is a rigid, to a partition subsisting in one coparcener, the power to bequeath his share cannot be exorcised by another coparcener. In Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 the negative proposition is asserted that, where the right to a partition is wanting, there is no restraint on the power of alienation. Seeing that in their judgment in the same case, Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 the Judicial Committee cited the Hansapur case (Baboo Beer Pertab Sahee v. Maharaja Rnjmdar Pertab Sctihue 12 M.I.A. 1 in which the disposition was a testamentary one, we cannot suppose that they intended to restrict their decision to the case of gifts inter vivos. The conclusion at which we arrive is that, as the late Raja was capable of disposing of his estate by gift to a stranger, notwithstanding the existence of a son, so there is nothing to prevent his dealing with it by way of testamentary disposition.
6. We come now to consider the question raised by the fifth issue. This issue appears to have been framed with respect to an allegation made in the fifth paragraph of the plaint. Reference is there made to an adoption deed, dated the 1st October 1873. In point of fact there is no such deed, and it is not alleged in the plaint that, apart from the document bearing date the 1st October 1873, there was any contract between the plaintiff's natural father and the late Raja on the occasion of the plaintiff being given in adoption to the late Raja. The document of the 1st October 1873 (Exhibit D E) was executed some few days after the ceremony of adoption took place. This document evidences nothing more than a concession made by the late Raja with regard to the retinue of his adopted son and to the access to him of the members of his natural family. It is true that, by way of recital, it is stated in the document that the boy has been adopted and constituted the heir to the Zamindari and its appurtenances. These words state nothing more than the legal consequences of the plaintiff's adoption. It cannot be pretended that they in any way restrain the adoptive father in the exercise of his powers of alienation. It might as well be said that the Raja had precluded himself from prejudicing the rights of his adopted son by begetting a natural son. Language far stronger was used by the adoptive father in the case of Rungama v. Atchama 4 M.I.A. 1 and yet it was hold that he had not disabled himself from disposing of the property without the consent of his adopted son. There being no evidence and, as we have said, no allegation even of anything in the nature of a contract or a settlement, we must hold that there was nothing in the provisions of the document of the 1st of October 1873 to preclude the Raja from disposing of his property as he pleased, so long as he did not evade the obligation to maintain the appellant. That obligation is recognized in the wills.
7. It remains to deal with the contention which is raised under the fourth issue. The issue is not happily worded, but we are told that it is mount to raise the question whether, by reason of the mere fact that the appellant is not the son of the testator, be is precluded from taking the estate under the will. For the purposes of this issue we are assuming that the appellant is, as found by the District Judge, not the son of the late Raja. It is contended that the Raja's expressed intention was to give the estate to his begotten son, and that the gift must fail if, in point of fact, the appellant does not answer to that description. In the plaint the allegation in respect of this matter is that the Raja, in or about October 1885, announced that his wife had been delivered of a son, namely, the appellant, and that this assertion on his part was false and fraudulent and set up to deprive the plaintiff of his rights as an adopted son. From this allegation in the third paragraph of the plaint and the plaintiff's own evidence as also from the opening of the plaintiff's vakil in the Court below and from the conduct of the case in that Court, it is abundantly clear that the plaintiff's case was that the Raja was himself a party to the conspiracy by which the appellant was introduced into the family as his son, he being in fact a stranger. There is nothing to indicate that the Raja was under any mistake about the matter, and still less that he himself was the victim of the alleged fraud. The Judge apparently accepts this view of the ease in paragraph 128 of his judgment. These being the circumstances, the cases cited to us, in which the testator was either under a misapprehension or was deceived, are wholly inapplicable. In the class of cases to which Fanindra Deb Raikat v. Rajeswar Das I.L.R. 11 Cal. 463 belongs, the testator made a gift to a certain person under the belief that he filled a certain character, and the language of his will showed that his intention was that the person named should take the gift only in that character. In such cases it has been hold that, when the testator turns out to have been mistaken, the gift must fail, because the presupposed condition does not exist. It was argued that notwithstanding the fact that the testator, the Raja, was under no mistake, the will still showed that his intention was that the appellant, as his begotten son, and only as begotten son, should take under it. It is contended that, by his reference to the Hindu law and by his constant repetition of the word avurasa son, the Raja evinced his clear determination to make his will in harmony with Hindu opinion, which might be scandalized if he had given, away his property to a stranger. Having regard to the admitted fact that the Raja know that the legitimacy of his putative son was disputed, we are asked to say that he intended the appellant to take only in the event of his claim as son being established by a Court of law. A somewhat similar argument was used by Sir George Jessel as Counsel for the appellant in Hill v. Crook I.L.R. 11 Cal. 463. There the testator bequeathed certain, property on trust for his 'daughter Mary, the wife of the said John Crook' for her life, John Crook in the former part of the will having been described as the testator's son-in-law, and after the decease of his said daughter, Mary Crook, he directed that his property should remain upon trust for the benefit of the children of his said daughter Mary Crook. It appeared that John Crook had first married another daughter of the testator and that, upon her death, he had gone through a form of marriage with the testator's daughter Mary. This daughter Mary was, therefore, not the legal wife of John Crook, and her children were not her legitimate children. There was in fact a double misdescription, for prima facie according to English law 'children' imports legitimate children. The children of Mary Crook were reputed and known, as her children. So, in the present case, we have been referred to evidence showing that the appellant was introduced to the Raja's friends as his child and that the usual ceremonies for a child were performed by the Raja. It was held in Hill v. Crook I.L.R. 6 H.L. 265 that the children of Mary Crook were as clearly pointed to by that description as if they had been mentioned by name. There can be still loss doubt where, as in the present will, the actual name of the donee is also given. All that can be said with regard to this will is that, if the appellant is not the son of the late Raja, there has been a misdescription of him in the will. It cannot be said that there is any possible doubt as to the identity of the person intended by the testator. We may refer to the case of Schloss v. Stiebel 6 Sim. 1 cited in the argument, where the testator who was betrothed to a lady and intended to marry her in a few days, made a codicil in her favour describing her as his wife. Although he died before marrying her, it was hold that the lady was entitled to the legacy. That case, like the present, illustrates the general doctrine that a false description does not by itself vitiate the legacy. In Kennell v. Abbott 4 Ves. 802 the Master of the rolls, citing the passage from the Digest Book XXX. V, t. I, 1. 72, S. 6, says that the meaning of it is 'that a false reason given for the legacy is not of itself sufficient to destroy it. 'If there is an adequate description of the person intended to take, the erroneous addition of words of description is immaterial, This is the case even where the error is unintentional, the true fact being unknown to the testator. A fortiori it must be so where the testator, for some reason of his own, uses words which he knows to be inapplicable. His description of the appellant as his avurasa son, which we are assuming to have been intentionally erroneous, we are disposed to attribute to a desire on his part to strengthen the position of his intended beneficiary, who, we must repeat, had after all been treated by him as his son. The frequency of the use of the term 'avurasa' is, in our opinion, fully accounted for by the need of distinguishing the avurasa from the dattaka or adopted son. It may be noticed that in each of the wills the full name of the adopted son and of the avurasa son is given only once and in other places the descriptions avurasa and dattaka are used in juxta-position.
8. On this part of the case we find that the testator's intention was undoubtedly to give the estate to the appellant irrespective of his claim to the title of son. No fraud or deception was practiced upon the testator. He was under no misapprehension, as to the facts. He used language which can apply to no one bat the appellant, and therefore his gift must take effect.
9. To recapitulate, our findings are (i) that the zamindari of Pittapur is an impartible estate; (ii) that there is no proof that it is inalienable either by custom or by reason of the tenure; (iii) that the estate thus being alienable inter vivos according to the decision in Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 it was equally alienable by will; (iv) that the late Raja's will is not void as being in conflict with any contract or settlement made by him in the plaintiff's favour; and (v) that the appellant, whether or not he was the son of the testator, is the persona designata.
10. Having come to those conclusions in favour of the appellant, we deem it unnecessary to proceed further with the appeal. The enquiry into the matter of the legitimacy of the appellant would entail a mere waste of the time of the Court for a great number of days, besides causing needless expense to the parties, for in the result their position with regard to the property would not, in the view we have taken of the validity of the will, be altered by the decision at which we might arrive on the other question.
11. We must allow the appeal and reverse the decree of the District Court and dismiss the suit.
12. We have considered the question of costs. We think that, as the plaintiff has provoked an enquiry into the legitimacy of the appellant which, unless he succeeded in impeaching the Raja's wills, was vain, he ought to pay the ordinary costs of the litigation, By ordinary costs we mean the costs incurred under the Court Fee's Act for stamp duties, and under the Legal Practitioners' Act for pleader's fees, and the printing and translation charges in this Court, Other costs incurred by the parties themselves, such as the costs of the Commissions for the examination of witnesses and of printing papers done outside the Court, must be borne by the party who incurred them.