1. The facts of this case may be briefly stated as follows : One Kothandarama Aiyar of Poongavoor (Tanjore District) died on 25th April, 1905, leaving two daughters (1) Nagammal, 1st defendant, who is a widow, and (2) Gnanambal, his adoptive mother Valambal, and his widow Parvathi Ammal. Prior to his death he had executed a will, dated 20th September, 1902, Ex. XIII, (2) a will, dated 8th September, 1903, of which we have no record, (3) a will, dated 29th October, 1903, cancelling the previous will (Ex. VI), and (4) a last will, dated 13th March, 1905 (Ex. A) in which all previous wills were cancelled. Along with the will of September, 1903, he executed a deed of settlement, dated 3rd September, 1903; but it was never registered and therefore never came into operation. Under his last will, Ex. A, he gave power to his widow to adopt either a son of his daughter Gnanambai provided she begets a son before January 1908, or a son of any one of his nephews, T. Subramania Aiyar or T. Venkata-rama Aiyar. He made certain dispositions to come into effect in the event of either contingency. At the time of his death Gnanambal had no son. The widow Parvathi Ammal resolved upon adoption immediately after his death. Necessarily she had therefore to adopt a son of one of the testator's nephews named in the will. She resolved to adopt the son of Subramania Aiyar and an agreement was executed settling the terms on which adoption was to be effected. This is Ex. I, dated 26th April, 1905. The boy was adopted on the same date but the deed of adoption evidencing it (Ex. II) was executed on 2nd May. The present. suit is filed by the adopted son T. Raju praying for a declaration of his title to the suit lands, namely, the lands of the village of Nallathakudi which formed part of the property of the deceased Kothandarama Aiyar. Parvathi Ammal died on 2nd July, 1918 and Valambal died on 10th June, 1917. The present suit was filed on 30th August, 1919. The Subordinate Judge who tried the suit dismissed it on the ground that the adopted son was not entitled to the suit properties relying on the terms of Ex. I. The plaintiff appeals.
2. Two points have been argued before us in appeal : (1) What are the terms of the deed of settlement, dated 3rd September, 1903 bearing on the suit lands, and (2) How far does Ex. 1 bind the plaintiff. The first question becomes necessary to decide because the terms of the deed of settlement were incorporated into Ex. I by reference to it, and though the deed of settlement itself was not registered, we have yet to ascertain its contents. The document itself is not forthcoming having been filed for refund of stamp duty and never taken back. D.W. 1 is the other nephew of the testator, namely, Venkata-rama Aiyar and he gives evidence that one of the terms of the settlement was that a. half of the suit lands should be enjoyed by Valambal for life and that Parvathi Ammal the widow, should have absolute interest in the remainder of that half and in the other half. He proceeds to add further terms cutting down the absolute estate of Parvathi Ammal in the event of her dying without alienating the property. It is extremely doubtful if the latter portion of the evidence can be accepted. Though at the time of the adoption, he co-operated in bringing about the adoption, for we find him to be an attestor of Ex. I, he has now taken an attitude adverse to the plaintiff. The reason for this is obvious. At the time of the adoption one of the matters contemplated by all the parties was that Alamelu, daughter of the 1st defendant Nagammal, should be given in marriage to Krishnamurthi, son of this witness, and that Alamelu should get an absolute right in the lands of Kothankudi. Thus it was contemplated that Kothankudi lands should go by means of this marriage to the family of Venkatarama Aiyar just as the family of his brother Subramania gets a portion of the testator's property by means of the adoption. But unfortunately this marriage never took place and Venkatarama Aiyar's family did not benefit. Though, therefore, it is not safe to rely upon the evidence of this witness, still, as I will presently show, the first portion of his evidence appears to be true. D.W. 2 never saw the settlement deed as his cross-examination shows and his evidence about its contents is useless. D.W. 3 is the 1st defendant. She never read the settlement deed but heard when the terms were dictated by her father. Assuming this is good evidence, it is doubtful if we can rely upon such evidence for ascertaining the terms of the settlement. I am not willing to rest my conclusion as to the terms of the settlement on the evidence of D.W. 1 and D.W. 3 only as the Subordinate Judge does. We have got Ex. VI which refers to the terms of the settlement deed and which in my opinion seems to be conclusive as to what they were. Reading Ex. VI, it is clear that the scheme of the testator in September and October, 1903, was first, to-make provisions in favour of his daughters, mother and wife by means of a deed of settlement, leaving certain properties, and these he intended to deal with by a will in favour of the adopted son. Accordingly he executed a deed of settlement, dated 3rd September, and will of 8th September. He cancelled the will and executed another will on 29th October, namely, Ex. VI. In para. 2 of Ex. VI he says that under the deed of settlement, dated 3rd September, he made suitable provisions for his daughters, mother and wife. In para. 3 he gives authority to his wife to make the adoption. In para. 4 he says that the adopted son should have an absolute interest in
the properties which remain after excluding those which I have distributed under the deed of settlement referred to above, that is, the nanja, punja, etc., lands, buildings, houses, sites, trees, etc., which belong to me in Kokkur village, together with the shares in all the samudayams belonging to me.
3. This clause shows that the properties now dealt with by the deed of settlement comprised only the lands in the Kokkur village. Mr. Varadachariar, the learned vakil for the appellant, who argued the case with his usual fairness and ability, contended that this Clause (4) does not necessarily show that the whole of the interest in the suit lands had been disposed of by the settlement. He contends that the clause is consistent with making a gift of an interest for life in the suit lands to Parvathi Ammal and the remainder remaining outstanding to the adopted son, and the reference to the lands in Kokkur village only was made because the life-interest in the suit lands had been disposed of. We cannot agree with this contention. If only the life-interest had been given to Parvathi Ammal in the suit lands, there is a vested remainder undisposed of and such undisposed of interest must have been necessarily referred to along with the lands in the Kokkur village. The parties belong to a very intelligent class of people, namely, Tanjore Brahmins, who are almost as well versed in legal ideas about remainders as trained lawyers, and anyhow they are assisted by a High Court Vakil, Mr. T. Natesa Aiyar, who was an attestor of Ex. I. He is a brother of Subramania Aiyar and Venkatarama Aiyar already referred to. In Ex. I the sentence
The adopted son Raju himself is, as mentioned in the deed of settlement, to get all the properties in Kokkur village and enjoy the same with absolute rights
shows that the adopted son had no vested remainder in the suit lands. This can be only because the suit lands were completely disposed of by the settlement in favour of the wife. Whether we look at the terms of Ex. I or Ex. VI it seems to be clear that the suit lands were given away to Parvathi Ammal absolutely after life-interest in half of the lands of her mother-in-law, Valambal. It is because of the light thrown by these two documents that I am inclined to believe the first half of the evidence of D.W. 1 and not the later portion when he speaks of further dispositions in case Parvathi Ammal died without alienating. The motive for this further addition is clear. He wants to ensure that the property will not reach the adopted son in any event. In the ordinary course, after Parvathi Animal's death (intestate) the daughters succeed to a Hindu daughter's interest in the suit lands and, as this is not an absolute interest, there is a further chance of the adopted son getting these properties if the daughters die without male issue or daughter's sons. The witness's object was to cut off this chance also. But, as a matter of fact, Parvathi Ammal left a will which was in dispute at the time when the witness deposed, but we are informed it has since been found to be genuine. The contingency contemplated by the witness did not in fact arise. I am not prepared to believe that portion of the evidence, but there is no reason why we should not believe the evidence in so far as it shows that Parvathi Ammal got absolute interest in the suit lands.
4. The second question that arises is how far is Ex. I binding on the plaintiff. As we have seen, the terms of the settlement are incorporated in Ex. I. It is conceded on all hands that, but for Ex. I, the plaintiff is entitled to the suit properties on the construction of Ex. A.
5. The only question that now remains is whether Ex. I is binding upon the plaintiff. The Subordinate Judge held that it was binding on the plaintiff with reference to the then case-law on the subject. At the time when the Subordinate Judge decided the case he had not the benefit of the latest decision of the Privy Council in Krishnamurthi Aiyar v. Krishnamurthi Aiyar and we have now to decide the case in the light thrown on the question by this decision of the Privy Council. That decision modified the judgment of the Madras High Court reported in Krishnamurthi Aiyar v. Krishnamurthi Aiyar (1924) 49 M.L.J. 252. Up to the decision of the Privy Council, according to the law as understood in India and specially as laid down by decisions of the Madras and Bombay High Courts, an agreement brought about at the time of adoption by the natural father acting on behalf of the adopted son may he binding on him, if it is fair and beneficial to him, though it cuts down part of the interest which he would get but for such agreement, and would not be binding on him if it is not fair and beneficial. The decision of the Judicial Committee has now modified this view. Viscount Dunedin who delivered the judgment of the Board referred at length to the Bombay and Madras cases. The noble Lord summed up the Bombay cases thus:
As a question of actual decision, the Courts have always upheld the grant to the widow of her interest for life.... But when the gift is to outsiders it has been held invalid.... The reasons given have varied.
6. Then the noble Lord summed up the Madras cases thus:
As regards decisions, the general result has been to validate the arrangements so far as provision is made for the widow just as in Bombay.... As regards reasons, again they vary....
7. Then the Board's conclusion is stated thus;
They are of opinion that there is such a consensus of decision in the cases... that they are fairly entitled to come to the conclusion that custom has sanctioned such arrangements in so far as they regulate the right of the widow as against the adopted son. It seems part of the custom that one sine qua non of such an arrangement should be the consent of the natural father...the mere postponement of his interest to the widow's interest, even though it should be one extending to a life-interest in the whole property, is not incompatible with his position as a son. Their Lordships are, therefore, prepared to hold that custom sanctions such arrangements.
As soon, however, as the arrangements go beyond that, i.e., either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist and that such arrangements are against the radical view of the Hindu Law.
8. I think, as I understand their Lordships' judgment, the effect of it seems to be this : (1) If an agreement provides a gift to strangers it is void, (2) If the arrangement confers advantages on the widow, it will continue to be valid if it is fair and beneficial as before and invalid if unfair. As illustrative of the last proposition, even if the agreement confers life-interest on the widow in the whole property and the adopted son's enjoyment begins after the death of the widow, it will still be regarded as fair and valid. If the whole property is given absolutely to the widow, it will be regarded as unfair.
9. I infer from the above summary that if absolute interest is given to the widow in some items of the property which do not amount to practically the whole of the property, or in other words if a substantial part of the property is still left for the adopted son, the arrangement may still be regarded as fair and beneficial and therefore may be valid. I do not understand the last sentence which I quoted from the Privy Council judgment to lay down that if a very small item of property is given absolutely to the widow and if the adopted son gets very large property, still the whole disposition will be invalid. Such a view seems to be against the reasons given by their Lordships and would be anomalous, comparing it with the other illustrations , referring to the gift of life-interest in the whole property to widow. The word 'property' in the last sentence, I think, refers to the whole of the property. In construing that sentence, one must remember that the actual case before their Lordships related to a gift to strangers and this they held to be invalid. They were not considering in detail particular cases of gifts to the widow. Only one case was given as illustration. On this part of the case I have had the advantage of reading my brother's judgment and I entirely agree with his view of the decision of the Privy Council and also his view on the question whether the agreement Ex. 1 can be regarded as fair and beneficial to the adopted son which is also that of the Trial Judge.
10. The result is that the appeal fails and is dismissed with costs.
11. The defendants have not given up the point they raised in the first Court, i.e., that there was an oral disposition of the suit lands by the testator after Ex. A. But we found it unnecessary to hear them on this point.
Venkatasubba Rao, J.
12. This is an appeal from a judgment dismissing the plaintiff's suit. He seeks to recover, as the adopted son of one Kothandarama Aiyar, a village known as Nelathikudi from the latter's daughters, the 1st and 2nd defendants. Kothandarama Aiyar died on the 25th of April, 1905 having executed a will (Ex. A), dated the 13th of March, 1905. It is unnecessary to state in any detail the terms of that will, beyond mentioning that the testator conferred by it upon his wife Parvathi, an authority to adopt. On the very day after the testator died, his widow adopted the present plaintiff as her son. Before the adoption was made, an arrangement was come to (Ex. I, dated the 26th of April, 1905) regarding the enjoyment of certain properties and to that arrangement the natural father of the boy was an assenting party. Two questions are raised in the suit, first, a question of fact relating to the terms of this ante-adoption arrangement; secondly, a question of law regarding its validity.
13. The plaintiff bases his title on the will which bequeaths to him the village in question after the deaths of the testator's mother and widow, who were to enjoy it for their lives. The former died in 1917, the latter in 1918 and the suit was filed in 1919.
14. The suit is resisted on the ground that under the ante-adoption arrangement, Nelathikudi was given absolutely to the adoptive mother, who, before her death, made a will disposing of it in favour of her daughters, the defendants. As I have said, the first point to decide is a question of fact. Is it a part of the arrangement that Nelathikudi was to be taken absolutely by the testator's widow? The learned Trial Judge, upholding the contention of the defence, has found that under the arrangement Nelathikudi was given absolutely to her. My learned brother has dealt with that point fully and for the reasons given by him, I agree in the conclusion arrived at by the Lower Court.
15. This leads me to the consideration of the next question. Is the agreement valid? The Lower Court, applying the test laid down in the cases decided by this Court, has come to the conclusion that the agreement was fair and reasonable, that it was for the benefit of the adopted son and is therefore binding upon him. The argument for the appellant is, that the law on this point has since been declared by the Judicial Committee to be entirely different in Krishnamurthi Aiyar v. Krishnamurthi Aiyar The point raised is thus of far-reaching importance and it is our duty to very carefully consider the scope and effect of the Privy Council decision. It is undoubtedly true that the case itself decides a narrow point, but the judgment contains a valuable exposition of the principles relating to ante-adoption agreements--an exposition to which the greatest weight must be attached.
16. The argument for the appellant may be shortly put thus : If the effect of the arrangement is to allow the adoptive widow to retain a life-interest in the property, even though it may extend to the whole property, that arrangement is valid; but if a portion of the property, however small that portion may be, is allotted absolutely to the widow, that offends against the principle laid down by the Judicial Committee. To take a concrete case, if the property is worth a crore and the widow who, let us assume, is in her teens, makes the adoption, there is nothing in law to prevent her from having for her whole life at her absolute disposal the entire income from this large property, which may amount to lakhs; but if a small fraction of this extent, say, a property worth Rs. 10,000 is allotted to her absolutely that arrangement is bad, and cannot be upheld. This is, in short, said to be the effect of the dicta contained in the judgment. I am decidedly of the opinion that this contention is wrong.
17. To understand the decision correctly, we must first look at the facts of that case. The question there raised was, whether the provisions of a will made by the adoptive father were valid by reason of an ante-adoption arrangement. By that will, certain lands were devised to persons 'who were connections but were in no case within the degrees entitled to maintenance,' that is to say, some distant relations of the adoptive father. The suit was filed after the death of the testator by the legatees against the adopted son for the recovery of those lands. The case thus raised a question regarding persons 'not within the degrees entitled to maintenance,' and this distinction is of fundamental importance and is emphasised throughout the judgment. The opening paragraph refers to this important factor and several subsequent passages lay stress upon it. In summing up the Bombay cases, their Lordships draw a clear distinction between what the Courts did in regard to gifts to the widow of her interest for life and gifts made to outsiders. They point out that 'the Courts have always upheld the grant to the widow of her interest for life,' whereas 'when the gift is to the outsiders it has been held invalid.' Then again, when the effect of the Madras decisions is stated, similar language is used. Their Lordships say:
As regards decisions, the general result has been to validate the arrangement so far as provisions are made for the widow just as in Bombay.
18. To quote a further passage, the same idea underlies the following remarks:
They are of opinion that there is such a consensus of decision in the cases with the exception of the case of Jagannadha v. Papamma I.L.R. (1892) Mad. 400 : 1892 3 M.L.J. 193, that they are fairly entitled to come to the conclusion that custom has sanctioned such arrangements in so far as they regulate the right of the widow as against the adopted son.
19. This I consider to be the most essential part of the judgment. The antithesis is, between the right of the widow on the one hand, and on the other the right of the 'outsiders' or 'strangers' or persons 'in no case within the degrees entitled to maintenance.' It must be borne in mind that the actual decision itself,' as I have already said, was in respect of outsiders, that is, those not entitled to maintenance.
20. In regard to gifts to widows, the matter stood thus. They were upheld by the Indian Courts but the reasons on which they were so upheld were various. Their Lordships examine the soundness of these reasons and reject them as being totally opposed to principle. But--and this is significant--the result of the decisions was accepted, however, not on the ground that they were based on sound reasoning, but, as it might be inferred from their all but uniform course, that by. Hindu custom and usage the law was modified to the extent of sanctioning arrangements 'in so far as they regulate the right of widow as against the adopted son.' The arguments of Subramania Aiyar, J., in his referring order in Visalakshi v. Sivaramien I.L.R. (1904) M. 577 : 1904 14 M.L.J. 310 were clearly opposed to the opinion of the Full Bench expressed later in the same case. The Judicial Committee approves of the reasons mentioned by that learned Judge, but are not prepared to adopt at the present day his conclusion. There is no warrant for saying that the decision of the Full Bench, which was at that time regarded as of binding authority in Madras, was overruled by the Privy Council. Indeed, on the contrary, it is patent from their judgment, that this was the course which their Lordships were not prepared to, and did not, adopt. In this connection, I may observe that in the Full Bench case, though other reasons are given, reasons which must now be taken to be unsound, the ground of custom is specifically mentioned. Benson, J., with whom the other Judges concurred, quotes from West and Buhler:
Fair arrangements for the protection of the widow's interest, during her life, are commonly made, and are always supported by the authority of the caste,
a view which found favour with the Full Bench. What then is the effect of the Privy Council decision? It unequivocally holds that such arrangements cannot be upheld as give property to strangers; in other words, Ganapathi v. Savitri I.L.R. (1897) M. 10 is inferentially overruled; where it had been held that a disposition in charity by the adoptive father was binding; on the other hand, Balkrishna Motiram v. Sri Uttar Narayan Dev I.L.R. (1918) B. 542 is inferentially upheld, where a gift by the adopting father in favour of a charity was by the High Court held bad. It may not be out of place to enquire why the Bombay High Court held that gift bad. The reason is contained in a passage in the judgment of Hayward, J., which has been cited by the Privy Council. And what is that reason? 'Agreements for reasonable provision for widows ought to be upheld as valid according to general custom modifying the strict terms of Hindu Law.' But, there is no reason to recognise the custom in support of a more general extension of the modification. This is precisely the view that the Judicial Committee itself has now taken. The point on which I wish to lay stress I may again refer to in this connection. In the judgment of Hayward, J., the words used are 'agreements for reasonable provision for widows' without a distinction being made between an absolute gift and a life-estate.
21. I am clearly of the opinion therefore that in the matter of arrangements in favour of widows the law has not been in the least disturbed. For determining their validity the tests that were laid down in Visalakshi v. Sivaramien I.L.R. (1904) M. 577 : 1904 14 M.L.J. 310 must still be applied. Did the arrangement receive the consent of the natural father and was it a fair and reasonable one and for the minor's benefit? If these tests are satisfied, the Courts will uphold the arrangement, if not, they will not.
22. Mr. Varadachari for the appellant seeks support for his argument in the passage in the judgment of the Judicial Committee which reads thus:
As soon, however, as the arrangements go beyond that, that is, either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist, and that such arrangements are against the radical view of the Hindu Law.
23. If this sentence stood alone, it would doubtless support the contention that their Lordships were intending, a contrast between a gift of a life estate and an absolute gift, to a widow. But, can we disregard the tenor and tendency of the whole judgment taken together by laying undue stress on a stray word or an isolated phrase? The dangers that follow from such a course are quite apparent. For instance, take the following passage from the same judgment:
But the concensus of judgments seems to solve these two questions in this way--namely, that the consent of the natural father shows that it is for the advantage of the boy, and that the mere postponement of his interest to the widow's interest, even though it should be one extending to a life-interest in the whole property, is not incompatible with his position as a son. Their Lordships are therefore prepared to hold that custom sanctions such arrangements.
24. Can it, on the strength of this passage, be contended that however unfair or unreasonable, an arrangement must in every case be upheld on the ground that what is given to the widow is a mere life-interest although it extends to the whole property? I think not. And again, on the strength of the same passage, can it be contended that the consent of the natural father has always the effect of validating an arrangement irrespective of its being fair or not fair? These considerations show that what we must have regard to is the judgment taken as a whole, and understood reasonably, and not merely a passage here or there taken out of its context
25. The learned Subordinate Judge has come, on the evidence, to the conclusion that the arrangement assented to by the plaintiff's natural father was fair and bona fide and for the minor's benefit. I entirely agree in that view and shall shortly state my reasons. The Sub-Judge points out that if the plaintiff had remained in his natural family he would have been entitled, as it was then constituted, to properties worth about Rs. 20,000, whereas, in virtue of the adoption he obtained an estate worth at least five times that value, that is, about a lakh. There is another fact to which I may call notice. Kothandarama Aiyar's intentions in regard to the village in question varied from time to time. He made a will (Ex. 13) in 1902 devising the village absolutely to his wife in the case of her adopting one of his nephews--the event which has actually happened. In September, 1903, he made a settlement deed whereby again the village was given absolutely to his wife. In October, 1903, he made a second will (Ex. 6) by which he confirmed the provision made in the settlement deed. Only by Ex. A, his last will, he made a disposition somewhat different in this respect, that is to say, he conferred only a life-estate upon his widow. Thus we find that in the view of the testator a gift of this village to his wife, in the event that has happened, was not an unreasonable provision. He declared his intentions as I have shown on four occasions, and on three out of them what he intended his wife to take was an absolute and not a mere life-estate. Judged from any point of view, the arrangement seems to be a fair and reasonable one as the Sub-Judge has found and it must therefore be upheld.
26. I therefore agree that the appeal fails and it is dismissed with costs.