1. O.S. No. 7 of 1943 out of which this appeal arises was tried in part with O.S. No. 3 of 1944. Reference may be made to my judgment in Appeal No. 385 of 1945 for a statement of the claims of the various parties to this litigation. The parties will be described according to their array in O.S. No. 3 of 1944. The plaintiff in O.S. No. 7 of 1943 was the third defendant in O.S. No. 3 of 1944. We have heard Mr. Umamaheswaram for the third defendant on the question of the validity of the will ; and our opinion was, for the reasons given in the judgment in Appeal No. 385 of 1945 : (1947)2MLJ247 that the will was executed while the testator was in a sound disposing state of mind and that it effectively disposed of the whole of the testator's property.
2. Two additional questions have been argued in this appeal:
(1) Whether the third defendant was an illatom son-in-law of the late Chin-nayya, the testator ; and
(2) Whether even though the third defendant was the illatom son-in-law, the testator could not legally dispose of his property.
[After examining the evidence His Lordship concludes]
3. We have no doubt on the evidence that the third defendant has not discharged the burden that lay upon him of proving that he had been taken in adoption to the late Chinnayya.
4. Mr. Umamaheswaram has challenged the correctness of the statement of the learned District Judge in paragraph 10 of his judgment.
Even if it be held that the recital is sufficient proof of an affiliation having taken place, such affiliation does not deprive Chinnayya of the power of alienating his property 'inter vivos' or even devising it by will.
The substance of Mr. Umamaheswaram's argument is that an illatom adoption is of the nature of a contract, whereby the son-in-law agrees to assist his father-in-law in the management of the family affairs and that as consideration for this, the father-in-law promises to give the son-in-law a son's share in the family property. Although an illatom adoption has been said to be based on contract, in that no such relationship arises unless the father-in-law and son-in-law agree ; yet such an agreement is subject to all the incidents of an illatom adoption ; and it has never been held that one of the incidents of such adoption is that the father-in-law is deprived of his right of disposing of his property by gift or will. In Subba Rao v. Mahalakshmamma : AIR1930Mad883 , this very question arose. Gurgenven. J., with whom Beasley, C.J., agreed, said:
It is not possible, I think, to deduce from these decisions, even were they capable-which they are not-of universal application, that the illatom has, during the father-in-law's life-time, such an interest in the latter's property as would give him a right to interdict alienation and devise. Mr. Varadachari admits that the interest enjoyed is of a peculiar kind, which he would define as vested but variable. It would certainly be a very strong thing to hold that the father-in-law debars himself from disposing of any property thenceforward, and indeed the learned Advocate only goes to the length of suggesting that alienation for the purpose of defeating the iilatom rights would be invalid as against it.* * * Hollway, J. held, that the son-in-law did not become a joint tenant and the father-in-law had no such restrictions imposed upon his powers of alienation as the existence of a son would entail.
The learned Judge referred to an unreported case of this Court in A.S. No. 206 of 19 12 in which this question was very exhaustively considered and where it was found upon considering the evidence of a large number of witnesses who spoke to the incidents of an illatom adoption, that the father-in-law was not precluded from disposing of his property either inter vivos or by will. A.S. No. 206)' 1912 related to an illatom adoption in the Kurnool district, a district neighbouring on Bellary, to which the parties to this appeal belong. The learned advocate for the third defendant has been unable to show us any case in which it has been laid down that an illatom son-in-law is entitled to restrain his father-in-law from disposing of his property, because of the relationship between them or in which the correctness of the findings in A.S. No. 206 of 1912 and in Subba Rao v. Mahalakshmamma : AIR1930Mad883 , has been doubted. If the illatom son-in-law had such a power, he would be in a stronger position than a natural son. We are therefore of opinion that the learned District Judge was right in holding that the will, Ex. D-I, would be valid, even though the third defendant had succeeded in proving that he had been taken as an illatom son-in-law.
5. The appeal fails and is dismissed with costs of the first and second respondents (one set).
Frederick William Gentle, C.J.
6. I agree.