Skip to content


Raja Keesara Venkatappayya Alias Venkata Appa Rao and ors. Vs. Raja Nayani Venkataranga Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1920)38MLJ149
AppellantRaja Keesara Venkatappayya Alias Venkata Appa Rao and ors.
RespondentRaja Nayani Venkataranga Rao and ors.
Cases ReferredBombay Case Nirvanaya v. Nirvanaya I.L.R.
Excerpt:
- - but the grant was of an office only, and to an individual, to be held during good behaviour. it was clearly revocable at the pleasure of the sovereign, by whom it might be conferred, not merely on the eldest son, but upon any member of the. the fact that the company at the outset dealt with the mother of the minor head of the family is a strong evidence both of their recognition of his proprietary interests and of the custom of impartibility in the family. the district judge was under the impression that the manuscripts copied into his book came from the well known mackenzie collection, but this is negatived by the date. according to the statement in the kyfiat exhibit c-3 the siddalooru family, not only never enjoyed the office but were expelled from the country for adhering to.....wallis, c.j.1. these are appeals from decrees in two suits which were tried together and disposed of by one judgment, o.s. no. 30 of 1893 and o.s. no. 38 of 1895 in the subordinate court of ellore re-numbered o.s. nos. 45 and 56 of 1895 in the district court of kistna.2. in the first suit the plaintiffs sued at first as members of an undivided family to recover the zamindari of munagala from the 1st defendant, the court of wards and the 2nd defendant, the alleged adopted son of the daughter of the last male owner who died in 1854, on the ground that they had wrongfully taken possession of it on the death of the daughter in 1892. at a late stage they filed an additional written statement in which they claimed no doubt with reference to the plea of limitation: not as members of an undivided.....
Judgment:

Wallis, C.J.

1. These are appeals from decrees in two suits which were tried together and disposed of by one judgment, O.S. No. 30 of 1893 and O.S. No. 38 of 1895 in the Subordinate Court of Ellore re-numbered O.S. Nos. 45 and 56 of 1895 in the District Court of Kistna.

2. In the first suit the plaintiffs sued at first as members of an undivided family to recover the Zamindari of Munagala from the 1st defendant, the Court of Wards and the 2nd defendant, the alleged adopted son of the daughter of the last male owner who died in 1854, on the ground that they had wrongfully taken possession of it on the death of the daughter in 1892. At a late stage they filed an additional written statement in which they claimed no doubt with reference to the plea of limitation: not as members of an undivided family, but on the footing that the joint family had become divided in status, and that in law all the family properties including this had been all along in their possession as tenants-in-common.

3. The other suit for practically the same reliefs was filed by the members of the family who claimed to be the next reversioners if the estate was impartible. For some reason which is not explained, possibly because of deaths among the parties and delay in bringing in the legal representatives, these suits were not disposed of by the District Court until March and April 1904, when the then District Judge dismissed the first suit without trial on the ground that the plaintiffs had entirely altered their cause of action in the additional written statement, and the second suit because the plaintiff had already claimed the same relief in the other suit. The judgments of the District Judge in the two suits were set aside and the suits remanded by the High Court by orders of December 1909. Both suits were then tried and disposed of by Mr. F. A. Coleridge, District Judge of Kistna, by a common judgment on the 14th April 1914, more than twenty years after the filing of the first suit, and the appeals came on for hearing before us nearly five years after that judgment. The only explanation for these lamentable and almost unprecedented delays at every stage appears to be that many parties died and much time was taken in bringing in their legal representatives and serving them.

4. The District Judge tried the case very carefully and dealt fully with the various questions which arise in a very lengthy judgment which might, as he explains, have been shorter if he had not been writing against time so as to dispose of the case himself instead of leaving it to his successor. He has shown in a careful examination of the evidence that the plaintiffs have endeavoured to support their case by a number of spurious documents manufactured for the purposes of the case, and I may say at once that his conclusions in this respect have not been disturbed by the arguments addressed to us. I do not therefore propose to go over this ground again.

5. There are three important issues in the case, whether the estate is impartible, whether the 2nd defendant was duly adopted by the daughter of the last Zamindar, and whether the suit is barred by limitation. The District Judge has found on all these points for the defendants and has accordingly dismissed the suits.

6. The District of Kistna in which Munagala is situated forms part of the Northern Circars, which was at first under the Hindu Rajas, and then formed part of the Kingdom of Golconda which was conquered by Aurungazebe at the close of the seventeenth century. Subsequently the Circars were included in the Subbah of the Deccan and were governed by the Nizam until the middle of the eighteenth century, when they passed for a time into the hands of the French. Then after Col. Forde's successful operations, Lord Clive obtained a Sannad from the Imperial Court at Delhi assigning them to the East India Company.

7. Mr. James Grant in his Political Survey of the Northern Circars, which was submitted to Warren Hastings in 1784 and is re-printed as an appendix to the Fifth Report, Vol. 3, p. 1 of the new Calcutta Edition, gives a full account of the condition of the country from the time of the Golconda dynasty which was overthrown by Aurungazebe in 1687. There is no reason to doubt that at the time the District or Pergunah of Munagala was in the possession of the last survivor of a very ancient Reddi family who held it as deshmuk or Chauduri under the ruling power. Mr. Grant's view as to the position of these deshmuks and Chauduris is very similar to that taken by Mr. Stirling in 1821 in his report on Cuttack on which the Privy Council based their judgment in Ramakanta Das Mohapatra v. Shamannad Das Mohapatra I.L.R (1909) Cal. 590. They were generally in the position of renters who in consideration of the revenue, military and police services, were allowed certain Savaram or rent free lands in different parts of the district together with a fixed share of the collections. Sometimes the hereditary renter might be the head of a once ruling family, and even when he was not, the office tended to become hereditary in the family of the holder, but the tenure was liable to be put an end to by the ruling power. The fact that the office was hereditary and held for some generations by the senior member of the family was held insufficient in the case last mentioned to prove a special custom of impartibility among the descendants of the holder with whom the British Government effected a settlement so as to derogate from the statutory rule that in the absence of custom, the estate was to be descendible according to the ordinary rules of inheritance.

8. Their Lordships observed: 'They show, indeed, that the office of Chowdhuri was held for many generations, by a member of the family and that to the holder of that office certain lands were assigned as a part of his remuneration. But the grant was of an office only, and to an individual, to be held during good behaviour. It was clearly revocable at the pleasure of the sovereign, by whom it might be conferred, not merely on the eldest son, but upon any member of the. family, or, indeed, on anybody. In the nature of things, the office could only be held by one person at a time, and as Mr. Stirling points out, such offices were ' generally heritable'; but these considerations, though they may suggest a presumption, are not sufficient to establish a right. For this purpose, the evidence must be clear and unambiguous, which, in this case, it is not. Besides, it is hard to see how a family custom of succession to an estate not absolutely owned by the family could ever have existed ' I.L.R. 36 Cal. 590, 598.

9. This decision which was based on the facts of the particular case must however be applied with caution, because a decision of this Court based on very similar grounds as regards the Zamindari of Devarakota, which is also in the Kistna District, was reversed by the Privy Council in Mallikarjuna v. Durga I.L.R (1890) Mad. 406. Their Lordships considered it unnecessary to go back further than 1766, the date of the cession to the East India Company. They referred to the fact that before the permanent settlement the rights of the Zamindar had been recognised by the Company as opposed to the view of the High Court that changes of possession of the Zamindari were simply acts of administration, and later in their judgment they laid stress on the fact that the permanent sannad issued under Reg. XXV of 1802 was a recognition of such hereditary right.

10. They said that Ankadu, the grantee, 'thus acquired a permanent property in the land at a fixed assessment, but there was no grant of the land, and the rule of succession to it was not altered. The Estate remained entire, and there is no evidence of any intention of the Government to alter the nature of the tenure'. In effect they held that, even before the permanent settlement the Zamindars had an hereditary estate to which the custom of succession by primogeniture could and did attach.

11. From 1766 the proprietary right of the Zamindar of Munagala does not seem to have been questioned. The name of Keesara Lutchey is to be found in the list of Zamindars in the Northern Circars in the Minutes of Consultation of the Government of Fort Saint George for 1766, Exhibit X. The Company no doubt dealt with her as the mother and guardian of the minor Keesara Venkataramanah, the fourth Zamindar in the pedigree Al, to whom the cowle, Exhibit D, wag granted. The fact that the Company at the outset dealt with the mother of the minor head of the family is a strong evidence both of their recognition of his proprietary interests and of the custom of impartibility in the family. Exhibit Dl, dated 12-4-1771 was granted in 1771 by the Governor of Fort Saint George fixing the assessment for three years for the Purgunah of Munagala then in his possession. In Exhibit X (a) which is an extract from the Minutes of Consultation of 31-8-1774, he is included in a list of Zamindars with whom tribute had been settled. Exhibit A is a pedigree of the 'Keesarvar family of Moonagalah Purgunah' presented to Government at the time of the permanent settlement, Venkata Narasimha aged 44 is shown as the 'present Desmook'. Exhibit XII, dated 21-1-1803 is a letter from the Collector reporting his death and stating that he had left a son Kodandaramiah, ' to whose succession to his father's estate I perceive no objection'. The letter referred to the receipt of a permanent cowle or sanad for delivery to the Munagala Zamindar, and reported the Zamindar's death in order that the necessary alteration might be made. The son's name was accordingly substituted in the permanent sunnad, Exhibit XI, which recognised him as Zamindar and authorised him ' to hold in perpetuity to your heirs, successors and assigns at the permanent assessment herein named the Zamindary of Moonagalah'. As observed in the Devarakota case, there was no fresh grant but the proprietory right of the Zamindar was recognised and confirmed at a fixed assessment. In my opinion, in this, as in the Devarakota case there was before the permanent settlement an hereditary property in this Zamindari to which the custom of primogeniture could attach, and I think that on this ground the case is distinguishable from the more recent decision in Ramakanta Das Mohapatra v. Shamanand Das (1909) I.L.R.36 C.590 (P.C.). If it were to be held that prior to the permanent settlement the Zamindars were only Desmooks with no proprietory interest in the Zamindari and that the sannad bestowed the Zamindari as private property on Kodandaramiah and his heirs descendible according to the ordinary rules of succession and therefore partible, this would be fatal to the claims of the plaintiffs who are not descended from him but claim as his collaterals. In that case the Zamindari was his self-acquisition, and the 2nd defendant if his adoption be proved, would be entitled to succeed as daughter's son of the last male owner. On the other hand, if the sunnad only confirmed a previously existing proprietory interest, then it must be held on the authority of Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Venkondora 13 M.I.A. 333 that the sunnad enured for the benefit of the family according to their interests, and did not deprive them of a right of partition if the estate was joint and partible. There is no reason to doubt that in the seventeenth century Munagala was held by the head for the time being of an ancient family as Desmook or Chowdari under the Golconda kings, and it may possibly be that the family itself was descended from former rulers. According to the tradition, which there is no reason to doubt, on the death of the last of the Reddis shortly before 1693 his widowed daughter-in-law secured it for her own family known as the Keesara family to which the parties belong. Exhibit IX of the year 1693, not 1725 as the District Judge supposed, is a written summons in Persian and Telugu. The Persian part bears the seal of servant of the Emperor Aurangazebe or Alamgir (the name appears in the Telugu portion as Buda Chidanand) and calls on Keesara Mukund, the common ancestor of the parties, as Zamindar, to present himself with an armed force. The Telugu part is to the same effect but states that the Sardar is coming to punish the rebel Asway Row. This document appears to prove that Mukund was the recognised Zamindar of the District in 1693. According to the plaintiffs he was the second of the three brothers to whom their sister, the widowed daughter-in-law of the last Reddi, transferred half the Zamindari in 1690. The other half, they state, had been alienated by the last Reddi himself in 1684 and was bought back by the three brothers in 1705. The Zamindari was thus the joint acquisition of the three brothers and always remained joint family property. The originals of these deeds are not forthcoming but Exhibit BB series, a list of useful documents connected with the estate in the possession of the Court of Wards in 1893, includes such documents which are not now forthcoming. As secondary evidence, the plaintiffs produced from the Oriental Manuscripts Library a book of transcriptions from manuscripts deposited in the collection which included these three documents and also an incomplete kyfiat, Exhibit C3, forwarding them to some authority, probably the Collector as agent of the Court of Wards. The contents show that the kyfiat, if genuine, was written between 1816, when an amin was put in possession of the Estate and 1818 when it was handed over to the Ward on his attaining majority. The District Judge was under the impression that the manuscripts copied into his book came from the well known Mackenzie collection, but this is negatived by the date. Col. Mackenzie, as appears from the introduction to the printed catalogue of his manuscripts in Madras, left the Northern Circars, where he had collected manuscripts, in 1807. He afterwards served in the expedition to Java, and made the collections there which are now in the India Office. He did not return to the Circars, and cannot have collected these documents. It has therefore not been explained how the copies which were transcribed into the book produced got into the Oriental Manuscripts Library here. Exhibit C. of the year 1687 purports to be a transfer by the last Reddi of half of his Chowdari Mirasi of the Munagala pur-gunah for pags. 500 and provides that the transferees Siddalooru Venganna and Ramanna and their posterity are to discharge in perpetuity the office of Chowduri. It appears that in the Bombay Presidency lands attached as endowments to offices and the offices themselves were often the subject of transfer, see Adrishappa v. Gurushidappa (1880) I.L.R.4 Bom. 494(P.C.) but it is not shown that it was so on this side of India, where the general rule is that both the offices and the endowments are inalienable. It is not suggested that the transferees got into office under this grant, Exhibit IX shows that Mukunda was the Zamindar in 1693 and Exhibit C. on which the plaintiffs rely is a copy of a deed of gift of 1690 by the daughter-in-law reciting that the Desaigiriship was in her enjoyment and transferring it to her three brothers Keesara Peddi Reddi, Keesara Mukunda, and Royappah.

12. It is not easy to reconcile this with the summons of 1693, Exhibit IX, which shows that the second of the three brothers was the recognised Zamindar although according to C-2 the eldest brother Peddi Reddi survived until 1705. C-2 which is dated in that year purports to be a transfer by the representatives of Siddalooru Venganna and Ramanna to the three brothers Peddi Reddi, Mukunda, and Royappah of the share of the Chowdariship of Munagala which Venganna and Ramanna had purchased, not as in C-1 from the last Reddi, but from Nagappa Garu and another who according to this deed possessed a share in the Chowdariship. According to the statement in the kyfiat Exhibit C-3 the Siddalooru family, not only never enjoyed the office but were expelled from the country for adhering to rebels and were living in exile at Conjeevaram near Madras, when the three brothers, one of them the recognised Zamindar, arranged to pay pagodas 2,000 for their unsubstantial rights and sent this sum to them in exile at Conjeevaram. It seems an extraordinary story, and I am not prepared to place much reliance on these documents which are first heard of in connection with a dispute between the Court of Wards and the family between the years 1.816 and 1818, as evidence that the Zamindari became the joint family property of the three brothers. It is worthy of observation that all the pedigrees begin with Mukunda and do not include the name of his alleged brothers Peddi Reddi and Royappah.

13. As to the custom of impartibility in this family I agree with the District Judge that it is established by the evidence. The pedigree, Exhibit A, appended to the Collector's Report of 1824, Exhibit F, shows that the succession was according to the custom of primogeniture, the names of the successive Zamindars or Deshmooks being inserted in circles marked yellow to distinguish them from the other members of the family. As I have already pointed out, in 1766 the Company dealt with Lutchey, the mother of the minor Zamindar, and this is also evidence of recognition of the custom. Exhibit XII shows that at the death of Venkatanarasimha in 1803 his brother Booloka was alive, and it may be gathered from the letter that he did not claim as the eldest member of the joint family that the permanent sunnad should be his name but was willing to superintend the conduct of his young nephew Kodandaramiah to whom the sunnad was given.

14. Kodandramiah died in 1814, and the estate was taken charge of by the Court of Wards under Regulation V of 1804 without objection, which had no authority to take charge unless the estate belonged to the minor. Exhibit XIII reports that the surviving cousin of the deceased declared the minor was the rightful inheritor and that his rights were fully acknowledged by the cousin of the deceased. Exhibit XIII (a) contains a pedigree (torn) and a statement taken from them. With reference to Kodandaramiah, the Istimrar Zamindar, the pedigree states that although he was younger than his four uncles the sunnad was bestowed upon him according to the former usage of their Samasthanam. This is the clearest recognition of impartibility. The statement says that on his death-bed Kodandaramiah commended the junior members to obey Venkataramiah who was the eldest of his uncles, and they stated that according to usage the Zamindari should be in the name of Kodandaramiah's minor son and that 'the right of the Zamindar should be vested in him', and they could manage for him. This was signed by Nos. 2, 17, 27 and 34 in the pedigree. The eldest dayadi accepted the office of Manager under the Court of Wards but beyond paying the kists failed to account for the collections. The Collector also reports that it was set up that the property in the Nizam's territories belonged to another branch of the family, and he vainly attempted to obtain particulars about it through the Resident at Hyderabad. All he could ascertain was that the Keesara family had for a very long time enjoyed the Russoms and Savarams of a Zamindari of 13 villages in the Cumbummet Havelly or Purgannah under the litle of Desmook, Exhibit I (b), dated 7--10--1815, As he could not get the member of the family in the management to account, the Collector removed him from office and put in an ameen, Exhibit XIV (b) 4-6-1816. It was at this stage that the Kyfiat Exhibit C-3, if genuine, was submitted in which it is sought to lay a foundation for representing the property as belonging to the whole family and the documents C, C-1 and C-2 were put forward in support of this case, while at the same time it was not denied that the Estate had been ruled by Mukundappa. There are numerous inaccurate statements in the document. It is clearly an incomplete copy of the original, if any, and is in my opinion open to considerable suspicion having regard to the time when it came into existence. The Estate was handed back to the Zamindar with the outstanding balance on his attaining majority on 5--1--1818, Exhibit XIV (e) and the junior members do not seem to have taken any exception to this.

15. In 1824 the Collecter of Kistna presented a report on the Zamindaries in his District and his report on this Zamindari is the strongest evidence in favour of the plaintiffs. It is based on the old pedigree in the office, no doubt, Exhibit A-3, the one put in connection with the permanent Sunnad and a new one ' recently furnished by the present Zamindar together with the required explanation'. After repeating the story of the acquisition by Mukunda and his two brothers,' it states that it is in the enjoyment of the descendants of Mukundap-pa as the two persons died without issue. Venkatanarasimha Rao the present Zamindar is the sixth person from the said Mukundappa. Although there were second sons in every generation of this family, yet it appears that no division of the taluq was ever made between them, but the profits derived from it were enjoyed by all reserving only to the head of their family the title of Deshmookor Zamindar'. Having regard to the facts that no such claim as this was put forward in 1803 or again in 1814, and to the fact that the estate balance was handed over to the Zamindar on attaining his majority in 1818 I cannot help doubting whether this information was not supplied to the Collector by the junior members of the family rather than by the Zamindar. This suspicion is enhanced by what took place on his death in 1835. He adopted a boy on his death-bed and by his will, Exhibit H-2, appointed the boy's natural father as his guardian. The will directed him to continue to provide for the four families, the descendants of the Istimrar's uncles. Exhibit H-1 is anarji addressed by the Zamindar to the Collector in which he asked that the Zamindari should be placed in the management of the Court of Wards and enclosed a booted list or list of allowances to be paid which in my opinion included the payments to be made to the junior branches for maintenance. The list is not forthcoming but some particulars of it are to be found in Exhibit H. The report, Exhibit H-3, makes arrangements for the management and estimates that a balance will be available for the Zamindar on attaining majority. It does not appear that on this occasion the family put forward any such claims as are stated in Exhibit F. Exhibit XVI and XVI (a) show the difficulties which arose, and that the boy's natural father was placed in management under Regulation V of 1804. The fact that on the occasion of the minorities in 1814 and 1835 the Court of Wards took possession on behalf of the minor without objection from the members of the junior branches is strongly against the plaintiffs' case because if it was joint family property, the senior adult male would have been entitled to manage. When the minor came of age in 1849 he was necessarily under the influence of his natural father who belonged to one of the junior branches. The propertiea in the Nizams's dominions had been outside the Court of Ward's jurisdiction during his long minority and disputes appear to have at once arisen about them. In these circumstances he joined in Exhibit K which provided for the management both of the Zamindari and of the Hyderabad properties by the Zamindar and a member of one of the junior branches for a period of fifteen years on what I will take to be terms of equal sharing. Exhibit K was modified by certain other agreements during his life-time. At the time of his death there were disputes about to be referred to arbitration and, as appears from Exhibit R, dated 29th January 1855, at the time of his death he was contending that the villages had been obtained from him by fraud, intimidation, and intrigue. Exhibit K was only for 15 years and the Zamindar died about five years after its execution. On his death in 1854 his widow was put in possession by the Revenue Authorities as next heiress, apparently according to the opinion of the pundits that the nearest heir to the Estate of a person divided from his coheirs was his widow, Exhibit R, and set up an authority to adopt under a will. One of the junior members then filed a suit to recover his one-tenth share of the Estate treating it as partible. This was traversed in the rejoinder put in by the widow, the 1st defendant, which has been exhibited as Exhibit XIX. The widow entered into a razinamah with the junior branches which was embodied in a decree, Exhibit W, after the objections of her mother-in-law, the 2nd defendant, had been over-ruled. The decree provided that the ghatis should assent to the adoption by the widow pursuant to her husband's will, of Venkataraghava Rao, son of one of the ghatis, than an annual allowance should be paid to each of the five branches and the balance of the collections should be deposited in Court on account, as I understand, of the Estate until the adopted boy attained majority.

16. It was argued before us that the impartibility of the Estate was acknowledged by this consent decree and that it barred the present suit. There would have been more force in this contention, if the decree had directed that the balance should be deposited in Court on behalf of the minor until he attained majority. Possibly that was the provision in the original razinamah which is not forthcoming, but it is by no means so clear in the consent decree. Whatever be the effect of the consent decree it did not in my opinion affect the possession which the widow had taken as heiress of her husband.

17. The boy who claimed to have been taken in adoption sued the widow to recover possession of the Zamindari in O.S. No. 2 of 1868 in the District Court of Guntur. The widow died in the same year and her daughter, the alleged adoptive mother of the 2nd defendant in this suit, was brought on the record in place of the widow and also took possession of the Zamindari which she enjoyed until her death in 1892, the boy's suit having been finally dismissed by this Court on 3-8-1872, Exhibit XX.

18. Now the succession of the widow of the late Zamindar and of her daughter after her was a clear denial of the claim of the junior branches that the estate was either joint family property or owned by the family as tenants-in-common. The possession of the daughter from 1868 onwards was, in my opinion, clearly adverse to the claim of the junior branches that it was joint family property. Their case now is that the different branches had become divided by the suit of 1857 or earlier, and if this is so, they are not in my opinion governed by Article 127 which covers suits by a person excluded from joint family property to enforce a right to a share therein. This article in my opinion applies to suits by one or more members of a joint family against other members to enforce a right to share therein against other co-parceners, and does not apply to a suit brought after partition by some members of the family against others when they have become tenants-in-common and the exclusion is therefore not from joint family property within the meaning of the article. Neither condition is to be found here. The suit is not against another member of the joint family but against the 2nd defendant claiming through his mother as heir to the last Zamindar, and the plaintiff does not now claim to be entitled to a partition as a member of a joint family, but as one of several tenants-in-common. If the suit can be regarded as brought by the plaintiff as the heir of one of the tenants-in-common against the 2nd and other defendants as heirs of the other tenants-in-common, then the suit must be governed by Article 144. In this view the possession of the Zamindar's daughter from 1868 to 1892 must in my opinion be regarded as adverse to and exclusive of the claims of the other branches of the family and adverse to them from the first within the meaning of Article 144. She did not enter as a tenant-in-common with the members of the junior branches, but as heiress to her father and entitled as such to succeed to the impartible Zamindari. The case of the junior branches from 1868 to 1882 was, not that the Zamindari was partible, but that the succession went not to the widow and daughter of the late Zamindar but to the senior dayadi; and it was only in 1882 that they altered their position and renewed the claim that the estate was partible, a position they varied during the course of the suit by alleging that it was not partible joint family property, but as property enjoyed after partition by the family as tenants-in-common. The 2nd defendant's mother did not enter as heiress to one of several tenants-in-common but notoriously as heiress to her husband, and her possession was never that of one tenant-in-common holding on behalf of herself and the other tenants-in-common but adverse from the first to the claims of the junior members as tenants-in-common, and none the less so because of irregular payments made to them for maintenance, Such payments in those days having regard to the notions then prevailing in Southern India as to the nature of impartible estates and the interests therein of the junior members of the family were attributable to their position as junior members of the family and quite consistent with the claim to hold the estate as an impartible Zamindari adversely to the rest of the family. For the foregoing reasons I see no reason to differ from the conclusion of the District Judge that the estate is impartible and that the suits for partition are barred by limitation. These findings do not however dispose of the case, because the plaintiff in the 2nd suit is the nearest dayadi and the nearest heir of the late Zamindar if the 2nd defendant's adoption be not established, and he would be consequently entitled to succeed on the death of the Zamindar's daughter if his rights have not become barred by limitation. Now the rights of this plaintiff and the other members of the family as co-parceners or tenants-in- common or as preferential heirs to the Zamindar's widow and daughter have in my opinion become barred and extinguished under the Limitation Act, but the widow and daughter having taken as preferential heirs to the other members of the family, I do not think the rights of the other members of the family to succeed on failure of the daughter's line have been affected. It is therefore necessary to consider whether the 2nd defendant's adoption is established. There is really no dispute about the factum of the adoption, and the only question is whether the authority to adopt is duly established. The first question which arises is, whether the provision in Section 17 of the Indian Registration Act which requires authorities to adopt not contained in a will to be registered has any application to an authority to adopt given in Hyderabad outside British India by a subject of that State domiciled there. If not, such an authority is not a 'document required by Section 17 to be registered' within the meaning of Section 49 of the Act, and is not affected by the provisions of that section. Now the limits of legislative authority are territorial and the Indian Legislature in particular has authority to legislate only for British India and British subjects in Native States. Prima facie, therefore, its enactments are not to be construed to apply to acts done outside British India even by British subjects. The authorities on the subject of the territorial effect of statutes are collected in the late Mr. Craies' Statute Law, 2nd Edition, pp. 393-425, and I will only refer to Coolie v. Charles A. Vogeler Co. (1901) A.C. 102. Dulaney v. Merry & Son (1901) 1 Q.B.536 and Swifte v. Attorney-General for Ireland (1912) A.C. 276 where it was held that an Irish statute enacting that, where one of the parties to a marriage was a Protestant, the marriage if celebrated in a particular manner viz., ' by a Popish priest' should be null and void, had no application to the marriage so celebrated in Austria of a Protestant domiciled in Ireland. The Indian Legislature might of course enact that an authority to adopt wherever and by whomsoever made should not be recognised in India for any purpose unless it had been registered in British India pursuant to the provisions of the Indian Registration Act, and we should be bound to give effect to that provision, as effect was given in the Sussex Peerage Case (1844) 11 C& F. 858 E.R.1034 to the provision of the Royal Marriage Act that no descendant of the body of George II should be capable of contracting matrimony without the previous consent of His Majesty and that any marriage of any such descendant without such consent first had and obtained shall be null and void. There is however a strong presumption against attributing to it any such intention.

19. The instruments of which registration is compulsory under the Act are enumerated in Section 17, and the effects of failure to register are to be found in Section 49. The documents which were required to be registered by the earliest Registration Acts all related to immoveable property, meaning of course immoveable property situated in British India; and it may be taken that the legislature has sufficiently manifested its intention that none of the enumerated documents affecting immoveable property situated in British India should be valid unless so registered even if executed outside British India, as held in Hicks v. Powell (1869) 4 Ch. App. 741 more especially as Section 26 provides for the registration of such documents at any time within four months after their first arrival in British India.

20. Different considerations however apply to the provisions of Section 17(3) which were first enacted in 1871 that 'authorities to adopt a son executed after the first day of January 1872 and not conferred by a will, shall also be registered.' That is a provision affecting status. The Indian Legislature has no authority to legislate as to the status of the subjects of Native States domiciled in such States and this provision cannot, in my opinion, on the well established rules of construction be read as extending to an authority to adopt conferred in Hyderabad by a subject of that State domiciled there, whose only connection with British India was that his wife owned property there. Questions of the validity of adoptions made outside British India by persons who are not British subjects may arise in our Courts, not only in connection with claims to succeed to immoveable property situated in British India, but also in other ways too numerous to mention, and it would in my opinion be altogether opposed to the accepted canons of construction to attribute to the Indian Legislature when it inserted in the Registration Act what is now Section 17(3) an intention to interfere in any way with a question of such adoptions which is a matter outside its competence. For these reasons 1 am of opinion that the provisions of the Indian Registration Act did not apply to the authority to adopt the 2nd defendant; and that it is unnecessary to consider the further question whether these provisions were in fact complied with.

21. On the supposition that they were applicable much manifestly false evidence has been adduced on behalf of the plaintiffs to show that the authority to adopt was taken to Masulipatam and shown to the Collector shortly after its execution, as well as some not very satisfactory evidence on behalf of the 2nd defendant, which the District Judge has accepted, that, though the donee of the authority resided almost continuously in British India after her husband's death the authority to adopt remained in the Nizam's dominions until shortly before the Registration proceedings. I do not consider it necessary to decide this question or the questions as to the construction of the Registration Act which arise if it be held applicable to this authority to adopt. As regards these questions of construction, I am inclined to agree with the conclusions of my learned brother whose judgment I have had the advantage of reading.

22. I also agree with my learned brother for the reasons given by him that there is no sufficient reason for differing from the findings of the District Judge that the authority was in fact given and the adoption in fact made.

23. The appeals are dismissed with costs. The case is one of great complexity and under Rule 41 of the Appellate Side Rules, we grant a special fee of Rs. 3,000 to cover the Vakil's fees in both suits.

Sadasiva Aiyar, J.

24. Appeal No. 426 is against the decree in O.S. No. 56 of 1895 on the file of the District Court of Kistna sitting at Masulipatam. The connected Appeal No. 427 is against the decree passed in the earlier Suit O.S. No. 30 of 1893 filed in the Subordinate Judge's Court of Ellore but transferred to the file of the District Court above mentioned in 1895.

To face page 167.

GENEALOGICAL TREE OF THE KEESARA FAMILY, ZAMINDARS

OF MUNAGALA ESTATE.

O.S. No. 45 of 1895 on the file of the

District Court, Kistna.

Pedda Reddi Mukundappa Rayappa.

| 1z

_____________________

| |

R.K. Suranna 2Z. R.K. Narasanna,

left a widow,

Latchayi 3Z.

|

________________

| |

R.K. Venkata R.K. Suranna.

Ramanna 4z.

|

______________________

I II

___________________________________

| |

R.K.V. Rao 5Z. R.K. Venkata Krishna Rao 1.

| |

R.K.K. 6Z. ___________________________

(C) | | A. |

C.R.K.V. Rao 7Z R.K. Venkata Ramanna Garu, 2. R.K.V. 3.

| | |

R.K.K. (adopted) _______________________ R.K.V. 6.

8Z. | | |

| R.K.V. 4 R.K.V. 5.____________________________

Widow R.K.R. | | F.R.K.R13. |R.K.G.14 |F.R.K.V.15

Rao 9Z. ___________ ______|_________________________

| | | | | | |

Daughter, R.K.V. 7. R.K.K. 8. R.K.L. 9. R.K.V.10. B.K.V. 11. R.K.R. 12

Naini Latchamma

Rao 10 Z.

|

N.V.R. 2nd defendant

______________________________________________________________________

_______________________________________________________________________

| | | |

D R.K.R.19 R.K.B R.K. Venkatagopala

R.K.N. | | 20. Rao, 26

18. R.K.V. R.K.V. R.K.Venka- __________|___________

R.K.V. 22 23 ta Narasimha | |

21. | Rao, 24 R.K. Nara R.K.R.

R.K.R. simha 28.

Ist plff. 25 Rao, 27 |

(dead) | R.K.V.

R.K.V. 30.

29. |

| R.K.V.

R.K.V. 2nd plff.

31. 32.

|

R.K.L.

3rd plff. 33.

____________________________________________________________________

|

V

|

R.K. Venkatachalamiah, 34.

________________________________|_______________________________________ | |

R.K.V.35. B.K.V.36.

________________|_______________________________ |

| | | | R.K.V. 41.

R.K.K. 37. R.K.V.38. R.K.V. 39. R.K.L. |

________________| 4th plff. R.K.V. 3rd deft.

___________|_________ (dead), 40 (dead), 48.

| | | ________|_______ ___________|________

R.V.R. R.K.V. R.K.S. | | | |

10th 44. 13th plff. R.K.V. R.K.C. R.K.V. R.K.C.

plff. 43 (dead) 45. 5th plff. 9th plff. 4th deft. 5th deft.

________|_________ ____| 46. 47. 57. 58.

| | | | | | |

R.K.V. R.K.M. K. 51.___|______ | V. 56. V. 6th deft.

11th 12th | | |_____________ 57. (s)

plff. plff. R.K.V. R.K.L. |

49. 50. 14th plff. 15th plff. ____________|________________

52. (dead) 52,(b) | | |

R.K.N. R.K.V. R.K.V.

6th plff. 7th plff. 8th plff.

53. 54. 55.

|

P. (minor),

16th plff.

25. The earlier Suit 30 of 1893 was filed in November 1893 and the plaint is dated November 1893 and this earlier suit will be treated as the more important suit and the several parties will be referred to in this judgment by the numbers given to them in the pleadings in this suit as far as possible.

26. The suit has taken 25 1/2 years from its inception before it could be decided by this Court. The delay has be en extraordinary even for a heavy Indian Zamindari litigation in which great delay seems to be accepted as normal. The history of the suits up to April 1914 is given in paragraph 227 of the District Court's Judgment. The suit was brought by 13 plaintiffs belonging to the Keesara family residing at Sirapuram in the borders of the Kistna District adjoining Hyderabad territory against 5 defendants. The 1st defendant was the Court of Wards who have since gone out of the record owing to the 2nd defendant for whom they managed the suit property, namely, the Munagala Zamin estate, having become a major during the pendency of this litigation. The 2nd defendant is the Zamindar residing at Nadigudam near Sirapuram where the plaintiffs live. The defendants 3 to 5 (4th and 5th defendants being the sons of the 3rd defendant) are three other members of the Keesara family who were arrayed as defendants because they refused to join the 13 plaintiffs in bringing this suit.

27. It will be seen that the 2nd defendant is the principal defendant in the suit and he may be shortly called the defendant. As might be expected; some of the plaintiffs, namely, plaintiffs 1, 4, 6, and 7 have died during these 26 years and three additional plaintiffs (14 to 16) came in afterwards. The suit, shortly stated, was for recovery of possession of the Munagala Zamindari from the defendant. The suit was dismissed and the plaintiffs are the appellants before us. To understand the main allegations of the plaintiffs on which they based their claim, the following geneological table and certain indisputable facts might be referred to here.

28. It will be seen from the geneological tree (containing more than 60 names) that 10 persons (excluding the defendant) of whom 8 are males and 2 are females, have been marked and numbered separately (with red-ink lined circles round the numbers). These have been recognised as the Zamindars and the Zamindarnees of Munagala entitled to be addressed as ' Rajagaru ' and 'Zamindar', while the remaining 50 odd persons numbered separately were treated as entitled to maintenance allowances called ' Bhootad.' The fourth Rajah (V. Ramanna) had 5 sons the eldest of whom was the fifth Rajah, his 4 younger brothers being Nos. 1, 16, 26 and 34 in the geneological tree. It will be seen that the dignity and status of Rajah or Zamindar was held only by a single member of. this Keesara family from the time of the earliest ancestor Mukundappa and that it descended in lineal primogeniture till the 2nd Kothandaramiah (Rajah No. 8). Then it descended to his widow the 9th Rajah Rukkamma Row and then to the tenth Rajahgaru who was his daughter Latchamma Rao. Exhibit A 1, a pedigree of the Keesara family prepared in 1824 and obtained from the Masulipatam Collector's Cutchery is a geneological tree which shows the first seven Zamindars marking them 1 to 7, the numerical figures being enclosed in yellow line circles. The 3rd Rajah was no doubt the younger brother of the second Raj ah, but the 2nd Rajah's senior line became extinct and so the third Rajah came in. The 4th, 5th, 6th and 7th Rajahs came in as belonging to the eldest line though the 4th had a younger brother, the 5th had 4 younger brothers, the 6th had 4 uncles and the 7th had several seniors in age in the junior four branches when they respectively succeeded to the Purgana Estate.

29. The first Rajah of this family (Mukundappa) flourished about the end of the 17th century and the beginning of the 18th century as is shown by Exhibits C and C2. Exhibit IX is a communication to Mukundappa addressing him as 'the most excellent of his contemporaries'. It is dated 1693. A Military General commanding the forces of the Emperor Alamgir (Aurangazebe) tells Mukundappa in Exhibit IX 'we are quickly starting, and coming to punish the rebel Asway Rao. You should come with your army; you should pay homage so that the Imperial Government may prosper and be honoured. You should come without entertaining doubt in respect of any matter and be honoured.' Thus in 1693, though Mukundappa had then an elder brother and a younger brother (see Exhibits C and C2), he seems to have been , recognised as the influential head of an army, a sort of petty military chief bound to assist the Emperor Aurangazebe. The Munagala Estate belonged to an ancient Reddi family and was part of the Mogul territory till 1755. It was held by members of the Garlapati Reddi family till 1690. As pointed out in paragraph 25 of the District Court's judgment, Reddis at Munagala seem to have been recognised as chiefs even from 1300 A. D. The line of the Garlapati Reddis became extinct about 1688 and the daughter-in-law of the last male-holder, Subadramma, transferred the Munagala Estate and the Desagiri or Desmuk status (which her father-in-law's family had enjoyed) to her brothers of the Keesara family one of whom was Mukundappa. This was in 1690 (Bee Exhibit C). As we have seen, three years after this, in 1693, Mukundappa is addressed as Zamindar in Exhibit IX and asked to assist with his army the General of the Delhi Emperor. The residence of the Munagala Chief was surrounded by mud forts. Desmuk means a principal, Police and Revenue Officer of a District and it is well-known that many of the Desmuks in Central India gradually claimed and acquired semi-sovereign powers and many of them called themselves not only Zamindars but Rajahs. When Subhadramma transferred her Zamindari of Munagala in 1690 to her brothers, she seems to have obtained the consent of several Sirkar officers, and influential men, about 70 persons having signed the Mahazir at the foot of Exhibit C, giving their approval to her act. As said in Grant's Political Survey, the transfer of such military estates seemed to require the consent of the people and it no doubt also required the consent of the ruling power before it could be recognised. I think I am safe in presuming that before 1693 when Exhibit IX was addressed to Mukundappa, he had been recognised by the ruling power as the Desmuk or chief of the ancient Munagala Purgana Zamindari though his sister executed Exhibit C in favour of all her three brothers. We do not hear of either of his two brothers enjoying or claiming any interest in the Munagala Estate, though their names appear to Exhibits C and C2.

30. On the death of Mukundappa (the first Keesara Rajahgar) which was in some year after 1705, his eldest son Sooranna became the second Rajah. On his death without issue his younger brother, Narasanna became the third Rajah. He seems to have died about 1760 or so leaving two sons Venkat-ramanna and Sooranna and a widow Latchayee. The widow Latchayee is treated as the Zamindarini in Exhibit X, datedl766, evidently because her eldest son who is entered as the fourth Rajah in Exhibit Al was then a minor. She is stated to be the mistress of a force armed with 206 matchlocks and 200 pikes in constant pay, the pikes capable of being increased to 300 in case of troubles. Then in 1770 the fourth Zamindar got the cowle or sunnad (Exhibits D and Dl) for the District of Munagala, the Munagala Zemindari Estate having become part of the Company's territory about 1766.

31. The fourth Zamindar was succeeded after 1774 by the eldest of his five sons who became the fifth Zemindar. He died on 9th November 1802 while the Mulkath Isthimirar Sunnad was being Prepared in his favour. The sunnad Exhibit XI was therefore given to his adopted son Kothandaramiah No. 1 who succeeded him to the Purgana estate as 6th Rajahgar though (as I said already) his 4 uncles, all elder in age to him (he was only 22 then) were alive. (See asterisk note in Exhibit XIII (a) as to his four uncles). The Collector in Exhibit XII dated 21st January 1803 says: 'The deceased' (5th Rajah) 'has left one son Kothanda Ramiah aged about 22 years to whose succession to his father's estate I perceive no objection. The deceased's brother Bhuloka Rao is alive and will superintend the conduct of his nephew. Gumastah however has been sent to receive charge of the country until the orders of the Board,' (that is, the Board of Revenue) 'are received.' In Exhibit XII (a) also, the words are that the Sunnad Isthimirar may be sent for delivery after alteration of the name of the late Desmuk into the name of the late Desmuk's son in the event of His Lordship in Council approving of his succession to his father's estate. Exhibit XII (b) also recommends Kothandaramiah to be recognised as successor.

32. Rajah No. 6 Kothandaramiah died in the beginning of 1814. He left an only son Narasimha Rao aged 13. 'From information it appears that the surviving cousin of the late Zamindar declared the son aged 13 years of the deceased to be the rightful inheritor and I therefore appointed an ameen to take charge of the Zamindari and wrote a letter to the other relatives, a translation of which as well as of their replies is herewith transmitted. From the latter paper the Board will perceive that the right of the boy so far from being disputed is fully acknowledged by the cousins of Kothandaramiah.' ''I know not therefore whether your Board would not better consult the interests of the boy etc. ' (See Exhibit XIII dated April 1814). The reply of the cousins referred to in Exhibit XIII is Exhibit XIII (a) and is in my opinion a very important document. It is signed by No. 34 (the surviving youngest son of the 5 sons of No. 4 Rajah) and also by Nos. 2, 17, and 27 in the geneological tree who are evidently the heads of the 2nd, 3rd and 4th of the five branches. In this Exhibit XIII (a), a geneological tree is given and there is a note against Kothandaramiah that although this young man was younger than his four uncles, yet the Zamindari was bestowed upon him ' according to the former usage of their Samasthanam ' and then it is said ' Although Venkatanarasimha Rao' (that is the boy of 13) 'the son of the late Kothandaramiah is younger than us, yet the Zamindari should be in his name according to the succession of the first branch of the family. The right of the Zamindari and the cowle granted by the Company should therefore be vested in him, and until he gains sufficient knowledge we will take care ourselves to pay the circar kists. We will manage all the affairs of the estate for hint etc.' Accordingly, the Board of Revenue took charge of the estate in 1814 on behalf of the minor Zamindar Kothandaramiah, see Exhibit XIII (b). I need hardly say that unless the proprietary right to the Zamindari was considered to be vested solely in the minor, the Board of Revenue under the Regulation V of 1804 could not lawfully take possession. It was evidently because the other 4 branches admitted in Exhibit XIII (a) that according to the usage of the Samasthanam, succession by lineal primogeniture obtained so far as the proprietary right to the Zamindari of Munagala was concerned, the Board of Revenue considered that they had jurisdiction to take possession, to appoint a manager and do the other acts mentioned in Regulation V of 1804 till the minor proprietor attained his majority (that is, 18 years of age), (see Sections 3, 4, 8, 9, 10, 19, etc., of Regulation V of 1804.) Exhibit XIII (d) shows that a manager was appointed to the estate and also a guardian for the minor. Exhibits XIV (e) and XIV (d) are very important documents. They show that the Zamindari was handed to the 7th Rajah Venkata Narasimha Rao in 18 18 with Rs. 3,000 odd outstanding in the treasury 'with all due solemnity' and that about May 1818 just before he attained majority (that is the age of 18 years) Rs. 4,000 was spent for his nuptials. This 7th Rajah Venkata Narasimah Rao who was so put in possession of the Zamindari by the Court of Wards on his attaining majority in 1818 died in August 1835. During this period, there was prepared the pedigree Exhibit A 1. of 1824, distinguishing the seven Keesaras who had succeeded to the Zamindari in lineal succession from the members of the other four branches who did not so succeed. Then there is Exhibit F of the same year which consists of two paragraphs 69 and 70 out of a long report of Mr. Roberts relating to all the Zamindaris in the Kistna, District. These two paragraphs relateto this Munagala Zamindari. The following are the important passages in Exhibit F: 'Venkata Narasimha Rao, the present Zamindar, is the sixth person from the said Mukundappa, although there were second sons in every genaration of this family yet it appears that no division of the Taluk was ever made between them, but the profits derived from it were enjoyed by all consiting of five families reserving only to the head of their family the title of Deshmuk or Zamindar ' 'The Office of Deshmuk was abolished in 1802.'

33. On the 6th August 1835, the 7th Rajah made his will, Exhibit H2, in favour of his adopted son, Kothandaramiah No. 2, the 8th Zamindar as follows:

[His lordship after setting out the terms of the will constituting the adopted son, heir to the Zemindary refers to the period of the Rajah's minority and proceeds,]

34. He therefore attained his majority on some day between 7th August 1848 and 5th August 1849. On the 14th April 1849, the Rajah as the second signatory and 9 other persons belonging to the Keesara family executed the Samakhya, (agreement), Exhibit K, in the presence of the Taluk Tahsildar.

[The judgment then sets out the circumstances under which Exhibit K was executed.]

35. Now let us see what the arrangement itself is. It clubs the Munagala Zamindari consisting of about 38 villages situated within the Company's Jurisdiction with 3 small taluks containing about 11 villages in the Nizam's dominions belonging to the Keesara family. The income from the British Indian villages was then about Rs. 10,000 annually, whereas the income from the Native State villages seems to have been about Rs. 600 to Rs. 800 (See Exhibits XXIV (c) and XXXI and the evidence of D. W. 15). The document Exhibit K says that the management of the total income for the 15 years between 1st July 1849 and 1st July 1864 should be as follows:

(1) From the 1st July 1849 to 1st July 1854 the Rajah Zamindar Kothandaramiah of Munagala and Venkatakrishniah of the 3rd branch (No. 15 in the geneological tree) were to manage the joint income;

(2) From the 1st July 1854 to 1st July 1859 the Rajah Kothandaramiah and one other man to be selected from six of the signatories to manage; and

(3) From 1st July 1859 to 30th June 1864 the Zamindar Kothandramiah again and one person to be selected by the three remaining signatories of Exhibit K to manage the total income. The document provides that all debts incurred till then should be accepted as payable by these three sets of two managers in each set (the Zamindar being always one of the two managers) so that the Sowcar was quite safe. Rs. 2,750 was to be set apart for the maintenance of the five branches of the family at Rs. 550 for each branch, Nothing is said as to what was to become after the expiry of the 15 years' term but evidently the parties thought that within that period, the debts of the Sowcar would be wiped out.

36. Disputes seem to have arisen at once and then the young Zamindar seems to have agreed to allow the four branches each to enjoy one or two villages for Bhootad, the income of each set of villages being estimated to amount approximately to Rs. 550.

37. While these disputes were going on this 8th Zamindar Kothandaramiah No. 2 died on the 22nd November 1854 (See. ExhibitR1). Then the Collector wrote Exhibit R to the Commissioner for Northern Circars. I shall extract the following passages: 'It appears that Gopamma the mother of the late Zamindar and Rukkamma his widow aged respectively 45 and 21 years are at peace with one another and willing and able to manage the estate with the assistance of such male members of the family and old servants as have been all along in their interest....The only offspring of the deceased Zamindar is a daughter reported to be five years old...With regard to the debts of the estate it appears that the late Zamindar had in his life-time made arrangements with Gonaguntala Seetayya, a Sowcar of Jaggayyapet by making over to him the usufruct of certain villages both for the liquidation of the debt and for the annual payment of the whole peishcush of the estate.'

With regard to the estate itself, I see no objection to its release from attachment and return of the several villages to those parties under whose enjoyment they were at the time of the death of the late Zamindar that portion which was in the hands of the Zamindar being given up to the mother and widow.

38. 'The opinion of the Pundits of the Sudder Adalet appears to decide that under the Hindu Law the estate of a person divided from his co-heirs who dies leaving no male heirs devolves first, upon his widow and then upon his daughter.' This was in January 1855. Evidently in accordance with the above opinion of Pundits and treating the Munagala Zamindari as impartible estate which belonged to Kothandaramiah No. 2 who was divided in interest from the other four branches of the family (see the decision of the Privy Council in Tara Kumari v. Chaturbhuj Narayan Singh I.L.R (1915) Cal. 1179 : 1915 29 M.L.J. 371 the estate was put into the possession of Rukkamma, the widow of Kothandaramiah in 1855 itself. Thereupon the members of the other four families seem to have brought five suits O.S. Nos. 5 to 9 of 1857. We have got some of the records (Exhibits B, XIX, W and WI) in two of those suits. Exhibit B is the plaint in O.S. 9 of 1857. The plaintiffs in that suit belong to one sub-branch out of the two sub-branches of one of the five main branches of the family. In the plaint, it is alleged that the Nizam's dominion villages are in the enjoyment of the 4 branches alone and not of the senior branch in whose name the Munagala Zamindary proprietorship is registered. The plaintiffs sue for their one-tenth share in the 38 villages yielding an income of about Rs. 13,500 gross and Rs. 9,000 net. The last sentence in the plaint says that even as regards the one-fifth share of the senior branch, the plaintiffs and the other members of the other four families are the next reversioners as the senior line became extinct for want of male issue. (The widow Rukkamma is impliedly acknowledged to be the widow of a divided member entitled to inherit his estate. In Exhibit XIX, Rukkamma Rao gave a 'rejoinder' written statement in which she denied that the other four branches had any share in the proprietorship of the Munagala Zamindary and stated that the other four branches had admitted long ago before the Collector that they were entitled only to Bhootad (maintenance allowances), that the plaintiffs and others have acknowledged that they were living separately, that ' when my husband has executed a will in accordance with the Hindu law, kinsmen who are not entitled have no right to say that it is contrary to law,' that the words ' Rajah ' and ' Zamindar ' apply only to the ' Rajah ' who is exercising overlordship ' and that the plaintiffs owing to lack of such ownership cannot get the titles of Rajah and Zamindar. In fact, the divided status was clearly admitted by both sides and the only question was whether the estate of Munagala was a partible estate or an impartible estate. Then the widow who had in the meanwhile pretended to have adopted a boy, one of her husband's cousins compromised all the suits, the principal terms of that compromise being recited in the judgment, Exhibit W, dated March 1858. The terms are that though the other four families were receiving only each Rs. 400 for their 'maintenance' allowance till then, (the Rs. 550 mentioned in Exhibit K had been reduced to Rs. 400 under Exhibit T. Series in 1857) it was agreed that the Rs. 400 should be increased to Rs. 500 that the plaintiffs in Suit 7 of 1857 (representing one of the two sub-branches of one of the five families) was entitled to Rs. 250 maintenance accordingly, that the widow should spend Rs. 500 for the maintenance of her own first branch, that she should meet the other usual expenses including festivals of deities, establishment charges and so on and that she should deposit the savings ' till the age of 18 years comes to the adopted son'' to the credit of the Munagala Purgana. The original razinamah itself is not before us. The recital of the terms in paragraph 5 of Exhibit W leaves it rather obscure as to whether the other four families had any share in the proprietorship of the Zamindari though the maintenance allowance of each of the branches, namely Rs. 500, was the same amount as what the widow Rukkamma herself was to take out of the income for maintenance of the senior branch. The provision however that the savings should all be with her till her alleged adopted son attains the age of (18 years and that the whole management of the Zamindari should remain with her seems to negative the idea that the other four divided branches had any claim on those savings or any claim on the Purgana except that of obtaining maintenance out of its income. It seems to follow that they had no proprietorship in the Zamindari though they might have been co-sharers in the sense in which before Sartaj Kuari v. Deoraj Kuari I.L.R (1888) All. 272 : 15 I.A. 51. persons entitled by custom to maintenance allowance from a Zamindari Estate as being descended in junior lines from the common ancestor were loosely talked of as co-sharers though there was really no co-parcenery in the strict sense and no right to claim partition. The other four branches thus did not press their claim to a division of the Zamindari and abandoned their claim to recover past mesne profits which they were entitled to get if they were really proprietory divided co-sharers with Rukkamma and her husband (See prayer in Exhibit B, the plaint in which such a claim for mesne profits is made). In the compromise, shares in the savings out of the whole income which may be received by the widow Rukkamma till the alleged adopted son attained majority are not expressly recognised or reserved in favour of the 4 divided branches. The reasonable construction of the compromise transaction seems to be that the members of the other four divided branches admitted the Munagala Zamindari to be a separate and (not a joint) impartible estate which had descended to the widow of (and then to the son alleged to have been adopted by her to) the previous Zamindar Kothandaramiah. The fact that the full proprietorship was exercised by Rukkamma Rao at once is shown by Exhibits III and III (a), she, as Zamindarni, having taken steps to dispossess her husband's gnatis (who were enjoying some of the lands as ryots in the Estate) of their ryoti lands for their non-payment of the rent or cist, due to her as Zamindarni. (One of the plaintiffs as plaintiff's witness admits that she dispossessed them for two years.)

39. After this compromise in 1858, Rukkamma Rao treated the estate as her own exclusive property though her husband's divided kinsmen went on intriguing against her. This is what one usually expects where a widow succeeds to an impartible estate and male agnates of her husband are alive. Exhibit XXI shows that in 1865 the published notices in the District Gazette that her husband's gnatis were trying to cause loss to her estate. Shortly before her death, on the 10th May 1868, she wrote, letter Exhibit XXII to the District Collector accusing her husband's gnatis of having poisoned her and stating that she has made over the Zamin estate belonging to her 'according to Dharma Sastra ' to her daugher Latchamma. It will be seen that she ignored the adoption referred to in Exhibit W. She seems to have died the very next' day at 4 P. M. The alleged adopted son Venkata Raghava Rao had filed suit No. 2 of 1868 in the Civil Court of Guntur District for recovering the Zamin right.

[The Judgment then deals with the details of the said suit.]

40. The daughter Latchamma who became the 10th Rajagaru Zamindar having succeeded against the alleged adopted son of her mother by this judgment of the High Court, Exhibit XX, began to manage the estate very ably and gradually raised the income from about Rs. 10,000 to 50,000 or 60,000.

[The Judgment next deals with matters not material to this report]

41. Meanwhile Latchamma Rao's husband who was himself a Deshmuki living at Thorur in the Nizam's territory (about 100 miles distant from Nandigoodem) died on 15th May 1875. About a week before his death he went to a village called Vavi-lala (about 8 miles distant from his ancestral village of Thorur) for treatment by a native physician there. He had been suffering for about 18 months from rheumatism and rheumatic fever, and dropsical symptoms had set in accompained by swellings in hands and legs. On the 10th May 1875 at Vavilala his wife Latchamma being then at Thorur he executed in her favour the deed of authority, Exhibit XXV, attested by four witnesses including his own natural father of the Rapaka family he having been himself adopted to the Nayini family. Of the four attestors one is a Deshmuki and two are Desapandias or karnams. The 4th is the executant's purohit and the writer is Seeniah whose brother was employed under him. On the 11th May 1875, he reported by Exhibit XXVII that he had given on the previous day authority to his wife to adopt. This report was sent to the Aval Talukdar who corresponds in the Nizam's dominions to the District Collector. Then he went back to Thorur where his wife was staying and reached the place about 8 A. M. on the 15th May 1875, gave into her hands Exhibit XXV (the authority to adopt) and died the same day at about 12 noon.

[The Judgment then deals with the recognition of Lutchamma Rao's right to her inherited properties by the Government and refers to the adoption of the defendant on 19-11-1883 by Lutchamma Rao and the execution of a deed of adoption Exh. XXIX (d) by her.]

42. It will be seen that from the 11th May 1868 when Rukkamma Rao died till 1883 when she made this adoption Latchamma Rao had been enjoying the Munagala Zamindari as heir of her father and as an impartible undivided and separated Zamindari estate for more than 15 years. Her father's Keesara kinsmen could not enjoy peace of mind when a woman who had become by marriage a Nayini was enjoying the estate, Though they had abandoned in 1858 their claim to treat it as partible as a 'hopeless ' contention (see Exhibits W and XX) they seem to have in February 1879 (just before 12 years elapsed from Latchamma's taking possession) tried to induce the Board of Revenue to dispossess Latchamma and give the Zamindari to them but they failed (see Exhibit VII (b)). Then in June 1880 (after she had enjoyed for 12 years) they sent the Urzee, Exhibit VII(c), to Government directly. Paragraph 8 of this petition admits that the Zamindari was acquired by a progenitor from the Nizam 200 years ago. This shows that it is an ancient Zamindari. In paragraph 13 they admitted that the family became divided, that the Munagala Zamindari should be 'governed' (that is, as if it was a chieftain's estate) by the 'first family heir'' and that maintenance should be given to the divided junior members. Paragraphs 24 and 25 and the 1st para of 30 are as follow: '24. The reason why an ancient Zamindari cannot be partitioned is, that by partition it goes to pieces, becomes completely fuined, and for some reason it will become destroyed or alienated, etc. that is, it means that a Zamindari is always an undivided estate '. ' 25 While there are male members in the family of the propositus, and when it is clear that it cannot go to female issue or be alienated, the Acting Collector of Kistna District by a mistake made over to her the right to the ancient Samasthanam estate which ought to belong to us Therefore the respect and name of our family became decreased and is destroyed.'

43. '30. The said Latchamma by her acts commenced to cause loss to the estate. The act of giving three villages to a woman named Chinna Butchakka in the 2nd family is one which is outside the scope of her power. Her strength lies in the advice of her servants. She is behaving in an improper manner but not in a virtuous manner, For these reasons we are entitled by ' Dharma Sastra' to obstruct her management and to attempt to remove her.' The above seems to contain a clearer admission that this was an impartible estate, that Latchamma's father's gnatis were all divided and that Latchamma had been strong enough to enjoy the property as exclusive heir of her father after her mother's death for more than 12 years notwithstanding that these people were trying to obstruct her management and attempting to remove her. They made a further attempt in 1882 by petitions (Exhibits VII (d) and (e) to the Collector and the Board of Revenue to disposess her.

44. It was in these petitions of 1882 that they set up for the first time after 1858 that the Zamindari was joint property, notwiths tanding that they refer in paragraph 9 of Exhibit VII (d) to their former Urjee of 1880 which acknowledged the Zamindari to be a separate impartible estate. In fact between the date of Exhibit VII (c) (June 1880) and the dates of Exhibits VII (d) and (e) (1882) they seem to have been advised to reassert their hopeless claim of 1857 which they had abandoned in 1858. In May 1882, Rajah Latchamma Rao wrote Exhibit KKK setting out all the facts and stating that from 1855 for 27 years she and her mother as heirs of her father had been in enjoyment (to the knowledge of her father's agnates) of the separate property of their father and that her fathers' agnates had not only no right at any time but their alleged claims as co-sharers were hopelessly barred, The Collector in the same year 1882 sent to the plaintiffs the order Exhibit VII (f) directing them to go to the Civil Court if they had any grievances and not to obstruct Latchamma Rao's enjoyment which had continued for 14 years. I shall at this stage give my conclusions on the two questions, namely, (a) whether the Munagala Zamindari was and is an impartible estate (b) whether the plaintiff's claim to treat it as a partible estate in which they had rights as co-sharers became barred and when it so became barred. On the first question, numerous authorities were quoted on both sides. I do not think it necessary to consider them elaborately. It is in my opinion a question of fact to be decided on the whole of the evidence in each case. No one circumstance is conclusive. Whether it was an ancient Zamindari is one circumstance to be considered, Whether it was in the nature of a military tenure is another circumstance. Whether there had been a confiscation and regrant, whether the British Government divided the estate and re-granted the divided portions to strangers or to junior members, whether it had passed by sale or gift from the family which first held it to another family are all circumstances to be considered and the final conclusion must rest on the evidence taken as a whole. The course of descent for several generations in the line of primogeniture without partition notwithstanding that there were agnates of the reigning Zamindar belonging to junior branches, is of course the most important consideration though even that fact may not be taken as conclusive. The inner conviction of the members of the family as shown by their conduct and their declarations from time to time, especially when there was no dispute is of course a very valuable test. When such declarations were made by the members of the junior branches against their own interests, they are, of course, of very great value. What they tried to put foward when or after an actual litigation had commenced is of very little value though their subsequent conduct in giving up 'hopeless' contentions is of much value. In this case, I have come to the clear conclusion on the evidence as a whole that the District judge's view based mainly on the important documentary evidence from 1687 to 1882 above set out is correct, namely, that the Munagala Zamindari has been always an impartible Zamindari which has come down in the descent of lineal primogeniture and that it was the separate property of Rukkamma's husband at his death. He had, no doubt, agreed in Exhibit K that its profits should be mixed up with the relatively very small profits of the divied Hyderabad Deshmuk property belonging to himself and his agnate relations and be held in common for a period of 15 years from 1849 for the purpose of discharging debts incurred during his minority by his natural father and by his other agnates but the ownership of the Munagala Zamindari remained however vested in him separately, there being nothing in Exhibit K which made that estate also partible or divisible property, the arrangement in Exhibit K having been modified even in his life-time and having ceased to have any force at his death which took place long before the expiry of the 15 years' term mentioned in it. It was superseded at once by other arrangements by which the enjoyment of some villages was given to the 4 branches for their maintenance and the enjoyment of two villages was given to the Sowcar for clearing off his debts. By reason of the decision in Exhibits W, andW1, and of the enjoyment of Rukkamma and Latchamma, the property became vested in them as heirs to the separate estate of Rukkamma's husband. The fact also that the Court of Wards came in first in 1814 and then again during Rukkamma's husband's minority is wholly against the alleged co-parcenery right of the agnates of the other 4 branches, the Court of Wards having no power to take possession of an estate if it was the property of an undivided family unless all its co-parceners are disqualified by minority etc., (see Section 17 of Madras Act I of 1902, Court of wards Act, which expressly enacts what was implied in the former Regulation V of 1804 and what was followed in practice by the Court of Wards even before Act I of 1902 was passed. The appointment of managers and guardians can be made under this Act only if the disqualified proprietor is the sole proprietor of the estate taken charge of or if all the co-parcenery proprietors were disqualified). The vague reference in Collector Robert's report Exhibit F, to enjoyment by all the branches (though the eldest in the senior branch alone is admitted even in it to be the sole Zamindar) and the reference in some other documents to a sort of co-parcenery among the five branches are not in my opinion of much value as it is well known that prior to the well-known decision in Sartaj Kuari v. Deoraj Kuari (1888) I.L.R. 10 All. 272 (P.C.) followed in the Pittapuram case, there was an erroneous idea that notwithstanding that an estate was impartible (and the agnates of the junior branches cannot therefore sue for partition) they could be called undivided co-parceners and were so styled even in judicial pronouncements (see the way in which this contention about their right as co-parceners and co-sharers was stated as following from judgments of the Privy Coucil itself by the Allahabad High Court at page 277 of I.L.R. 10 All. 272 that Court styling the right of the junior branches to be 'dormant co-ownership--see also 9 Madras Law Journal report of the Pittapur case where it was definitely met and negatived by their Lordships both during the argument and in the judgment notwithstanding that Mr. Mayne strenuously contended that at least, the long course of Madras decisions which prohibited alienation by a Zamindar enjoying an impartible estate, the prohibition being based on the theory of ' dormant co-ownership' in his agnates, may not be disturbed so far as Madras Estates were concerned.) Even if Exhibit F be construed as an admission by Rukkamma's husband that the Munagala Zamindari was co-parcenery property, the facts that Rukkamma and her daughter inherited it asserting that it was Kothandramiah's separate property and that they enjoyed it as such for 25 years continuously, their possession being statedly adverse and exclusive created a bar which destroyed the rights of her father's divided agnates and vested in Rukkamma and Latchamma prescriptive rights in the estate(see Freeman on Cotenancy, Sections 228 to 230.) In Vengamma v. Chelamayya : (1912)23MLJ168 it was held that a Hindu widow could obtain by prescription a woman's--estate in property as if it was the separate property of her husband, if the title she asserted (during the time when prescription was maturing) was the title of a widow holding the property as representative of her husband's estate see also Bapanayya v. Peddichalamaiya (1898) 9 M.L.J. 33. I am unable to accept the contention of the plaintiffs that the fact that Rajah Latcbamma Rao and Rajah Rukkamma were paying them allowances (Bhootad-maintenance) in accordance with the decree Exhibit W prevented the enjoyment of the ladies being adverse to their claims to be co-sharers thereof. (Nor do I think it necessary to notice the equally untenable contention on the defendant's side that because Latchamma Rao entered in her account books the said payments towards maintenance as presents, she prescribed for a higher estate than that of the daughter of a separate owner who had inherited as his heir.) That even the plaintiffs in this case considered their case of partibility and co-parcenary difficult to sustain is shown by their setting up one of them to bring the second suit on the basis of the estate being a separate impartible estate and also by their unscrupulous law agents having created for them documents Exhibits G. L. series, GG series, and entries in Exhibits AA4, and AA5. I generally concur with the reasons given by the learned District judge in paragraphs 89, 95, the last sentence in paragraph 129 and in paragraphs 143 to 151 and I agree for those reasons in holding that these are false documents.

45. I shall now consider the issues 7 to 10 in this case which relate to the questions connected with the fact of the defendant's adoption by Latchamma and of the authority to adopt alleged to have been given to Latchamma by her husband and of its validity. The 6th issue is partly based upon the defendant's allegation that besides the written authority, Exhibit XXV, given by Latchamma's husband, he had also given her an oral authority to adopt. That oral authority was however found against by the learned District Judge. I entirely agree with him as only two witnesses [Exhibits XLII (e) and XLI (aa)] speak to this oral will which is alleged to have been given at Thorur before Latchamma's husband went to the small village of Vavilala and it is quite unsafe to act on the oral evidence of such ordinary witnesses in an important and heavy case like this.

46. The other part of 6th issue relates to the genuineness of the alleged written authority Exhibit XXV. [His Lordship then discusses the evidence on the point.]

47. The genuineness of Exhibit XXV being in my opinion beyond doubt, its validity and also its admissibility in evidence are attacked on the ground that it was not properly registered. It was as a matter of fact registered after a very elaborate enquiry by the acting Sub-Registrar of Bezvada in December 1892. It was presented to him for registration on the 20th August 1892 by Nayini Ragbava Reddi (the defendant's natural father), the defendant then being a minor about 14 years old. The registration is however contended to be illegal on two grounds. (1) Firstly that this authority to adopt executed out of British India in Thorur was not presented for registration in Bezwada within 4 months after its first arrival in British India as required by Section 26 Clause (b) of the Registration Act of 1877; secondly that it was not presented for registration by any of the three persons who are entitled to present the same under Section 40(2) of the Registration Act, namely, the donor of the authority to adopt (who died in 1875), or the donee Latchamma who died in 1892 or the adopted son (the defend ant) but by the defendant's natural father who was not even his lawful guardian. For the defendant it was argued (a) that Exhibit XXV having been executed in the Nizam's dominions by Nayini Venkataramayya domiciled in the Nizam's territory to his wife Latchamma who of course was also domiciled in that territory like her husband, Section 17 of the Indian Registration Act, Clause 3, which makes the authority to adopt a son compulsorily registerable did not apply at all to Exhibit XXV as Section 17, Clause 3 must according to reasonable rules of interpretation be confined to authorities given by a person domiciled in British India. (52) Even if Section 17 applied to this authority, it as a matter of fact came into British India only on 22nd April 1892 within 4 months before it was presented for registration on 20th August. (b2) The time limit of 4 months in Sections 23 and 26 does not apply to authority to adopt when presented for registration under Section 41(2) by a person other than the donor of the authority, (c) Even if the Sub-Registrar erroneously thought that it was presented within 4 months of its arrival in British India, once he effected the registration his irregularity in having registered it was cured by Section 87 of the Registration Act. (d) The defendant having been a minor the presentation by the guardian for him in his interest is allowed by law. (e) His natural father who was his father's nearest agnate male relation and was also his de facto guardian was entitled to present it and even though the defendant had been adopted away, his natural father was entitled in law to act as his guardian in all the steps necessary to be taken to have the adoption established and hence, the natural father's presentation on behalf of the defendant is a proper presentation.

48. On the question of fact (that is, whether the document came into British India at any time more than four months before its presentation for registration in August 1892), I agree with the District Judge in answering the question in the negative.

[His Lordship then discusses the evidence and proceeds.] In the result, I find as a fact that the document was brought into British India only on the 22nd April 1892 about a month after Latchamma's death.

49. On this finding it is unnecessary to consider the other legal questions argued on both sides except the question of the validity of the presentment for registration by the defendant's natural father assuming that registration was necessary to make it admissible and to give it validity. On this last question, namely, whether Section 17, Clause 3, applies at all to a document executed out of British India by persons domiciled out of British India, I am inclined to agree with the contention of the learned Advocate General that Section 17 of the Registration Act which makes compulsorily registerable certain documents (compulsorily registerable documents being under Section 49 incapable of affecting immoveable property or conferring power to adopt or of being received in evidence unless so registered) was intended to deal only (a) with documents relating to immoveable property situate in British India (Clause 1 of Section 17) and (b) with authorities to adopt executed by a person domiciled in British India (Clause 3.) As regards the concession given in Section 26 to have certain documents including an authority to adopt executed out of British India presented for registration within 4 months after it is brought into British India, it was in my opinion intended to meet the case of a person domiciled in British India travelling abroad (in Europe or America etc., or even in a Native State on a pilgrimage) and suddenly finding himself in a bad state of health, executing an authority to adopt in favour of his wife to be used by her. The observations in some English cases Cooke v. Charles A Vogeler Co (1901) A.C. 102. Dulaney v. Merry d Son (1901) 1 Q.B 536 and Swifte v. Attorney General for Ireland (1912) A.C. 276 seem to me to establish that the legislature could not have intended to make the validity of a power to adopt executed in a Native State by a person domiciled within the Native State depend upon its being registered in British India or even its admissibility in evidence without registration depend upon its having been registered in British India within 4 months of its arrival therein. 1 shall take a case to illustrate what I mean. A, domiciled in the Nizam's territory and holding large properties therein and owning no property in British India,, gives his wife authority to adopt in 1875 and dies at once. His wife adopts accordingly a son B in 1875. Two years afterwards she starts on a pilgrimage to Benares, Rameswaram and other places and carries with her the box containing all her papers including the authority to adopt and returns to her native place after the pilgrimage in 1880. Then in 1900 her husband's brother C who had settled in Madras as a trader in 1885 dies in Madras leaving no nearer heir than his brother's adopted son B residing in the Nizam's territory. Can it be argued that the authority to adopt given by A (which validates the adoption of B under the Hindu Law) cannot be proved and is not valid because it was in the adoptive mother's luggage box forming part of her luggage during her pilgrimages in 1877 and had not been registered in British India within 4 months of that date? Is a person to lose his right as heir because he could not prophesy that 23 years after his adoptive father gave his adoptive mother authority to adopt in the Nizam's dominions, he might have to prove and establish the adoption in a British Indian Court? I think that if the status of a person as an adopted son has been established as valid in the domicile of the adoptive parents, that adoption must be held valid according to the principles of International Law in all other places where there is no express statute law to the contrary effect. In Maxwell on Interpretation of Statutes, Chapter VI, the whole question is considered. I shall quote a few passages therefrom. A State ' has a right to impose its legislation on its subjects--natural or naturalized in every part of the world.' ' On such matters as personal status or capacity it is understood always to do so.' ' In the absence of an intention clearly expressd or to be inferred either from its language or from the object or subject matter, or history of the enactment, the presumption is that Parliament does not design its statutes to operate on them ' (that is, even on its own subjects) ' beyond the territorial limits of the United Kingdom. They are therefore to be read usually as if words to that effect had been inserted in them.' ' Every statute should be so interpreted and applied as not to be inconsistent with the comity of nations or with the established rules of international law. If therefore the legislature intended to exceed its jurisdiction, it must express its intention with irresistible clearness to induce a Court to believe that it entertained it. All general terms must be narrowed in construction to avoid it.' ' In general, statutes, must be understood as applying to those only who owe obedience to the Legislature which enacts them that is its own subjects but that as regards aliens resident abroad, the Legislature has no concern to protect their interests, any more than it has a legitimate power to control their rights.'

50. I shall now deal with the remaining contentions on the question of the validity of the registration. I am unable to agree with the learned Advocate General that the plain words of Section 23, that all documents other than wills ought to be presented for registration to the proper officer within four months subject to Section 26 do not apply to authorities to adopt and that the language of Section 41, Clause 2, overrides the language of Section 23 and that if the conditions mentioned in Section 41, Clause 2 are satisfied, the document ought to be registered without reference to the time limits mentioned in Sections 23 and 26. The terms of Section 27 which expressly state that a will may be presented for registration at any time, clearly preclude the contention that there is a right to present an authority to adopt also for registration at any time. The reasonable meaning of Section 41, Clause 2 is that, provided the other conditions mentioned in parts 4 and 6 are satisfied, an authority to adopt shall be registered if the registering officer is satisfied in respect of the three additional conditions mentioned in sub-clauses a, b and c of Clause 2 of Section 41.

51. I shall now come to the contention on the plaintiff's side about presentment. It was argued that as Section 40 only allows the adopted son to present, nobody could present it for him even if he is a minor. In fact it was argued that even if the adopted son is an infant two years old, it was his hand that ought to present the document to the Sub-Registrar for registration. This would reduce to an absurdity the provisions of the Registration Act giving a right to present documents for registration to persons claiming under documents in the case, of all documents executed in favour of minors or other persons under disability if the obligors or donors neglect or refuse to present them. Some English cases were quoted as regards the presentation to livings by minors but I must frankly admit that I was unable to follow the argument. I referred to Simpson on Infants (pages 73 and 74, 3rd Ed.) but I find that the guardian's concurrence is necessary when a minor presents to a living--no doubt, the mere act of making a mark and putting a seal by the hand of an infant guided by the guardian was held valid in an old case, the ground being that 'there can be no inconvenience because the Bishop is to judge of the qualification of the clerk presented,' I do not think that there is any analogy between presenting a document for registration and presentation to a living under the peculiar historical and religious circumstances connected with English Equity and Ecclesiastical law.

52. A guardian is a trustee (see Section 20 of the Guardians and Wards Act) and he is entitled to exercise, for the benefit of the minor, all powers and do all acts which the minor could do if he were a major and such acts have the same legal validity as they would have if the minor did it after he attained majority. (See Trevelyan on Minors, pages 48, 49 and 139 as to guardianship being a trust and the guardian representing the minor fully). Presentation of documents for registration by guardians on behalf of minors has always been allowed by registration rules and officers as a matter of practice and it has been held to be valid in Appeal No. 200 of 1918 in this Court decided by Ayling and Napier, JJ; the donee of an authority to adopt (the widow of the donor) was a minor and her guardian's presentation for registration was held to be valid.

53. Under Section 35(1)(c) of the Registration Act, where an executant is dead, his representative can admit execution. But if the heir is a minor, his guardian should appear on his behalf according to Rule 472 of the Registration Department Rules.

54. So also Rule 493 says in regard to a question analogous to the one before us, 'Under the general principle of law that a guardian may do all acts which are for the benefit of his ward, a will may be accepted for registration after the death of the testator from the guardian of a person claiming under it.'

55. Another contention on the defendant's side was that Section 87 of the Registration Act cures the defect of jurisdiction when a registering officer registers a document presented to him more than 4 months after its execution or after its arrival in British India provided that (he registering officer bona-fide believed that it had been executed within 4 months or had been brought into British India within 4 months. Let us suppose a case in which the Sub-Registrar in good faith reads a document dated in January as dated in June and registers it in October. I do not think this is a mere irregularity which could be cured by Section 87.

56. Next it was argued that under Hindu law the natural father of the boyafter he had been adopted away, ceases to be his natural guardian. Admittingthat this is so, it has been held in a Bombay Case Nirvanaya v. Nirvanaya I.L.R. 9 Bom. 365 that the natural father would continue to be the proper guardian of his son so far as it is necessary to take all steps to assent and establish his rights to be the heir of the adoptive father as against his rival claimants.

57. The next question is one of fact, namely, whether the defendant was actually adopted by Latchamma, I think the evidence is simply overwhelming on this point in defendant's favour. [His Lordship then goes into the evidence on the question.]

58. If the adoption is true and if the authority to adopt is genuine and if it is a valid authority to adopt as I have found, the plaintiffs have no case. As the 2nd defendant is the sole heir entitled to inherit the property as the daughter's son of Kothandaramiah. No. II, the dismissal of both suits by the District Judge has to be upheld.

59. In the result, the appeals fail and should be dismissed with costs of the principal defendant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //