1. This is a suit for declaration that the alleged adoption of the 2nd defendant by the 1st defendant the widow of the late V. Venkatarama Pillai is in valid and cannot affect the rights of the plaintiff as next reversioner to the estate of the said Venkatarama Pillai. The factum of the adoption is admitted but it is denied that the 1st defendant had any authority to adopt. The defendants rely on an authority conferred in the Will of the deceased, dated 8th September 1889 but the plaintiff contends that the Will was revoked by the subsequent Will of 21st March 1890, which has been admitted to probate and that whether this is so or not the Will of the 21st March must be taken to be the last Will of the deceased until the grant is revoked of the earlier Will admitted to concurrent probate and that until it is admitted to probate. Section 187 of the Indian Succession Act which applies to Hindu Wills prevents the plaintiff from claiming under it. Some of these questions present considerable difficulty.
2. The earlier Will is perhaps wide enough in terms to cover any self-acquired property of the deceased supposing him to have had any, but the latter only disposes of the properties specified in it which are all ancestral properties. The earlier Will recites the testator's intention of adopting his daughter's son C. Venkatakrishna Pillai and in case of his dying before doing so gives his widow power to adopt him. Further in the event of C. Venkatakrishna Pillai dying without issue during the lifetime of the widow, the Will gives her further authority to adopt one of the other sons of the testator's daughter. The second Will was made after the testator had adopted C. Venkatakrishna Pillai. The authority to widow to adopt him is, therefore, omitted. Practically the only other change and at any rate the most material change is that in case of C. Venkatakrishna's death without issue during the life-time of the widow, the later Will does not give her any authority to adopt another son of the testator's daughter, but provides that the property shall be divided among the daughter's issue. Now it appears to me that this provision is entirely inconsistent with the provision in the earlier Will giving authority to adopt after C. Venkatakrishna's death without issue as in the event of such an adoption the whole of the properties covered by the later Will being ancestral would go to the son so adopted and would not be available for division among the issue of the testator's daughter as is expressly provided by the later Will. In construing the later Will we are not,in my opinion, at liberty to go outside of it, or to cut down the express provision that in a certain event the properties are to be divided among the daughter's issue, and read it as meaning that such a division is to be conditional upon the widow not making an adoption under the authority conferred by the Will. Unless we do this there is an absolute inconsistency between the two Wills and this being so the later must prevail. On this part of the case in spite of the learned and lengthy argument of the Advocate-General I have not been able to feel any doubt and have no hesitation it coming to the conclusion that the provision in the, later Will as to division among the daughter's issue was deliberately inserted in the later Will in substitution of the authority to adopt in the earlier. Will which was thereby intended to be revoked by it. If this be so then supposing the disposition in the second Will to be operative, there would be a clear revocation and it is unnecessary to refer to the more doubtful cases which have been decided in the Probate Court.
3. The learned Advocate-General, however, drew attention to the fact that after the adoption of C. Venkatakrishna Pillai by virtue of which the ancestral properties of the testator became the joint family properties of the testator and Venkatarama, the testator had no power to dispose of joint family properties by Will or to provide how it was to go in the event of Venkatakrishna Pillai's death without issue. Accordingly it has already been decided as between these parties in 0. S.A. No. 15 of 1895 that the second. Will is void and inoperative according to Hindu Law and that the present plaintiff is entitled to succeed as next reversioner on the widow's death.
4. It was subsequently to this decision that the widow adopted the present 2nd defendant claiming to act under the authority conferred by the earlier Will.
5. Now the learned Advocate-General relies upon the fact that the second Will was and has been held to be inoperative as to the properties it purports to dispose of to show that if the second Will was intended to revoke the first it was only a case of what is known in the books as dependant relative revocation, and the second Will having been inoperative there was no revocation of the authority to adopt in the earlier Will. As his authority the learned Advocate-General cited the decision of the House of Lords in a Scotch case Alexander v. Kirckpatrick 2 Sc and Divorce 397. In that case a husband and wife executed a conveyance reserving to her a power of revocation and subsequently executed a Conveyance of the same property to others without reference to the previous conveyance just as here the later Will does not refer to the earlier. The later conveyance was held inoperative for want of apt words and under these circumstances the House of Lords held that this inoperative conveyance did not revoke the earlier and effective disposition of the same property. The fact that in the present case there earlier Will does not strictly speaking contain a disposition of property but only an authority to adopt which if exercised would operate as a disposition of property does not appear to me to make any difference. Mr. Thirunarayanachari for the plaintiff cited English cases Tupper v. Tupper 917 3 W.R. 616 and Quinn v. Buller L.R. 6 Eq. 225 both anterior to Alexander v. Kirckpatrick 2 Divorce 397. Some of the English cases have held that the doctrine does not apply where the failure of the later instrument is due to the in capacity of the devisee to take a limitation which rests on the authority of a very old case French's case, (Roll's Alindgment Devisee 4) rather than in principle. This was pointed out by Lord Romilly in Quinn v. Buller L.R. 6 Eq. 225 who held that when the donee of a power expressly revoked an appointment made under the power and proceeded to make a fresh appointment which failed because it was not according to the power the expressed intention to revoke must be given effect to. This appears to be one of the English cases which Lord Cairns refers to in Alexander v. Kirckpatrick 2 Divorce 397 and distinguishes without expressing any opinion as to whether they were rightly decided on the ground that the later instrument contained an express revocation of the earlier.
6. In In re Fleetwood Sidegreaves v. Brewer 15 Ch. D. 594 where a testatrix executed a fourth Codicil containing dispositions in consistent with those she had previously made, but the fourth Codicil failed as it was attested by one of the beneficiaries under it, V.C. Hall observed: 'There is not in the fourth Codicil any express revocation of the Will and first, second and third Codicils and the fourth Codicil being executed in order to create new interests, which fail the original instruments of disposition were unaffected on the principle of Onions v. Tyrer 1 P. Williams 2 Vern 743 and other cases. I may add that to let in the doctrine it is not necessary that the later instruments should fail altogether for in Onions v. Tyrer 1 P. Williams 743 Eq. Rep. 130 the later Will was good as to personality but bad as to reality.
7. In Alexander v. Kirkpatrick 2 Divorce 397 Lord Cairns distinguishes between cases in which the later instrument contains express words of revocation as to which cases he savs there may be some doubt, and cases such as the present where there are no express words of revocation. As regards the latter he says at page 493: 'It appears to me that no case has been produced where either in Scotland or in England a mere alternative inconsistent disposition which is not valid or effectual in itself has been held to revoke an earlier disposition of the same property'. Lord Chelmsford takes the same ground. Lord Hatherley who had decided the English case of Tupper v. Tupper 1 K.& J. 6651 speaks of that class of cases in which a changed disposition having been intended to take effect but the changed disposition itself having failed to take effect the intention to revoke is not any further to be presumed from it', and Lord Selborne says that the heir-at-law (here the reversioner) is bound to make out with a reasonable certainty a revocation of the prior deed independently of disposition in the later. I think we must accept the law laid down by these high authorities as the rule of justice, equity and good conscience applicable by us. I may add that the intention of the testator in both. Wills was apparently to benefit his own grand children or one of them at the expense of the plaintiff who was the next reversioner under Hindu law and that such intention would be defeated by holding that the invalid disposition of the later Will operated as a revocation of the earlier Will and so let in the heir.
8. For these reasons I am of opinion that the authority to adopt in the earlier Will was not effectually revoked by the later Will. Then as to the objection that the earlier Will cannot be looked at I decided to take evidence as to the execution of the earlier Will and to admit it in evidence for reasons which Will be stated below and also with a view to a possible appeal. It was, however, unnecessary to take oral evidence as the due execution of the earlier Will was admitted by the plaintiff who had himself put it in evidence in the previous litigation and the adoption of the 2nd defendant by the first was also admitted.
9. To come to the objections themselves Mr. Thirunarayanachari in the first place referred to Williams on Executors. Vol. I, Page 431 (10th Edition) to show that the Probate is conclusive as to the contents of the testator's Will and also to page 119. The question as to this Will appears to me to be governed by Section 59 of the Probate and Administration Act, 1881, which provides that Probates or Letters of Administration shall have effect over all the property movable or immovable of the deceased throughout the province in which the same is granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him and shall afford full indemnity to all debtors paying the debts and all persons delivering up such property to the person to whom such Probate or Letters of Administration may be granted. Now the effect of this section is that, the estate of the deceased has to be applied by the executor with exclusive reference to the Will of which probate has been granted and without reference to any thing contained in any other Will not admitted to probate. That probate, however, does not in any way affect the joint family property of the deceased and his adopted son and it follows. I think, that Section 59 cannot affect a suit such as the present for a declaration of the plaintiff's right to succeed to the property which was and has been held to be the joint family property of the deceased and his adopted son. Then as to the further objection which is taken under Section 187 of the Indian Succession Act. I am not satisfied that the defendants are seeking to establish any right as executors or legatees when they rely on the authority to adopt in the earlier will. A Hindu widow can only adopt under authority from her husband or with the consent of the Sapindas and such authority unless conferred by an instrument which satisfies the definition of a Will requires registration under Section 17 of the Registration Act. Having regard to the far-reaching consequences of such adoption it might be well if Section 187 were made applicable to them, but taking the section as it stands, I am not prepared to say an authority to adopt is a legacy to a widow or that a widow on whom it has been conferred by Will is legatee. No authority has been cited for such a proposition and it would, in my opinion, be unduly straining the meaning of the word legacy so to hold. I think, therefore, the objection fails. At the same time I desire to say that I can see no foundation for the further contention put forward that Section 187 applies only to persons in the position of plaintiffs and not to defendants and that in my opinion Janaki v. Dhanu Lall 14 M.k 454 is no authority for such a contention. Moreover, even if I were of opinion that either of these objections ought to be up-held in a suit for possession of the plaint properties, they would not, in my opinion, preclude me from admitting the earlier unproved Will in evidence and taking it into consideration in a suit such as this for a declaration which is a discretionary relief. In such a suit the Court is entitled to have before it everything which may influence it in the exercise of its discretion and the existence of an earlier unproved Will conferring an authority to adopt which was not revoked in the later proved Will would, in my opinion, be a ground for refusing the declaration prayed for unless the Court was satisfied that it was too late for the defendants to satisfy the requirements of the section by obtaining concurrent probate of the earlier instrument.
10. In the result the suit must be dismissed with costs.