(1) This appeal from the judgment of Anantnarayanan J. relates to a claim to the estate left by one Balakrishna Pillai, a successful lawyer who was practising at Ariyalur in Tiruchirapalli Dt. He died on 6-4-1893, leaving behind him his two windows, Meenakshi Achi and Sornathachi. By the latter, he had a daughter Visalakshi Achi who was a child aged 3 years at the time of his death. Visalakshi came of age and was married but no issue resulted from that marriage. Meenakshi, of the windows, died about the year 1917. Visalakshi, the first respondent became insane and in O. P. 69 of 1944, on the file of the District Court, Tiruchirapalli, the second respondent to this appeal was appointed as her guardian. The appellant claims that he had been adopted by Swarnathachi on 14-9-42, in pursuance of an authority given to her by her husband. The adoption is evidenced by a document, Ex A. l, which bears the same date as the adoption. Within a period of four months thereform, on 29-12-1942, Swarnathachi executed a deed, Ex. B. 1, cancelling the adoption. An adoption once lawfully made effects a change of status and it will not thereafter be open to adoptive parent to cancel it. But the deed of cancellation, Ex B. 1, is valuable in the instant case, to show the circumstances under which the adoption was made and is also a pointer to the subsequent conduct of the parties. While the adoption deed states that Balakrishna Pillai had given each one of his two windows permission to adopt a son if Visalakshi were not to be blessed with a male heir, the deed of cancellation recites that the adoption and presumably this recital as well were brought about by the scheming father of the appellant, a village Munsif, who was in a position of confidence to Swarnathachi, Swarnathachi further declared in Ex. B. 1 that she herself had no legal right to take a boy in addition.
(2) It is not now disputed that notwithstanding the adoption, possession of the properties remained with Swarnathachi and after her lifetime it was with her daughter Visalakshi. Subsequently, when a guardian was appointed to her, on her becoming insane, the properties were taken possession of by that guardian. It is somewhat significant that the appellant, who was nearly 17 years of age at the time of his adoption, did not take any steps to recover possession of the properties till 5-8-1953, when he brought the suit out of which this appeal arises.
(3) The claim of the appellant that he was lawfully adopted to Balakrishna Pillai was resisted on behalf of Visalakshi by her guardian, both on the g4round of its facts as well as its validity. The learned subordinate Judge accepted the case of the appellant and decreed the suit. On appeal, Anantanarayanan J. while holding that the ceremony of adoption must have been made by Swarnathachi on 14-9-1942, was not prepared to accept that there was any authority to the window from her husband to make the adoption. Upon the evidence in the case, the learned Judge found that the utmost that could be said was that there was a joint authority to the two surviving windows of Balakrishna Pillai which lapsed on the death of Meenakshi. On this finding, the learned judge set aside the decree of the lower court and dismissed the suit of the appellant.
(4) We are in entire agreement with the learned Judge on both the aspects of the question. There is nothing in writing by Balakrishna Pillai to evidence the authority to adopt alleged to have been given to his two windows. As we said, his daughter Visalakshi was only three years old at the time of his death. It is not the case of the appellant that he wanted to disinterest her, and it is hardly likely that he would have contemplated a failure to issue to her and p4rovided for such a contingency. The only evidence in support of the authority to adopt conferred by Balakrishna Pillai on his windows, is that of two witnesses who have been examined on commission and whose evidence has been marked as Exs. A. 5b and A. 6.
The first of the two witnesses is one Ayyamperumal Padayachi, aged 85 years, at the time of his giving evidence. He spoke to the fact that he along with the other witness (Marutha Udayar) saw Balakrishna Pillai about ten days prior to his death and that the deceased then called his two wives and told them that if the daughter were to beget a son, he would be taken in the family and "if not the wives may adopt whomsoever they please". The next witness Marutha Udayar, who was also aged 85 at the time of his examination, spoke to the same incident and stated
"He called his two wives and told them to have somebody to perpetuate his lineage and to adopt......... If the daughter begets a son, let him be in the family; if not you can bring somebody you like."
Both these witnesses admit that they went to Balakrishna Pillai's house for the first time that day. The second of them pleads ignorance even as to how many wives Balakrishna Pillai had. None of them went again to Balakrishna's house, not even on the occasion of his death. We have no doubt that these two witnesses, who are friends of the appellant's family, are not witnesses of truth. Their evidence is quite inconsistent with the recital in Ex. A. 1, which categorically states that Balakrishna Pillai gave authority to enable each one of his wives to make an adoption.
More than this there is this circumstance. Under Ex. B. 1 Swarnathachi definitely declared that she had no legal authority to make the adoption. She continued in possession of the properties. The appellant's father, who, as we said, was the village munsif, would certainly have asserted the rights of the appellant immediately, if really there had been an authority from Balakrishna Pillai for his windows to adopt. But strangely enough no objection was taken to Swarnathachi's possession of the properties so long as she was alive. After her death, the properties were taken over by Visalakshi and, on her lunacy, by the second respondent. No claim was made even then by the appellant. It was only in the year 1953, presumably finding that the 12 year period from the date of adoption was about to expire, that the appellant came forward with his claim as the adopted son of Balakrishna Pillai. Perhaps,he was not willing to risk a litigation so long as Swarnathachi, who could have given useful evidence about the authority to adopt, was alive.
(5) The authority spoken to by the two witnesses (vide Exs. A. 5 and A. 6) is itself indefinite; it purports to direct the windows to wait till Visalakshi fails to beget a son. How long were the windows to wait and whether Balakrishna Pillai contemplated his windows to survive till the possibility of Visalakshi begetting a son ceased are not made clear. Upon all the circumstances of the case, we are of opinion that the evidence of two witnesses cannot be accepted.
(6) Even if one were to accept the evidence of these two witnesses as to the authority conferred by Balakrishna Pillai on the windows, it can only be a joint authority. As we said, the adoption must have been brought about by the appellant's father in the circumstances set out in Ex. B. 1, having regard to the conduct of the parties, in that there was no protest to the cancellation of the adoption by Swarnathachi under Ex. B. 1 on the ground that she had legal authority to make the adoption. The recital in Ex. A. 1 as to the form of authority given by Balakrishna Pillai can have no probative value. What we are now left with is only the evidence of the two witnesses contained in Ex. A. 5 and A. 6. That can only amount, as the learned Judge has held, to a joint power to the two windows. Such a power to adopt must be exercised strictly in accordance with its terms, as pointed out by the privy Council in Ragendra Prasad Bose v. Gopal Prasad Sen, ILR 10 Pat 187:(AIR 1930 PC 242). The primary duty of the Court in all such cases will be to ascertain the intention of the donor of the power as granted by him. In ascertaining such intention, the court will have to bear in mind the surrounding circumstances, namely, his manners, his outlook and his religious beliefs and social customs. But subject to this principle and generally speaking a power given to a window to adopt must be construed in accord with the rules of construction of powers which English courts have adopted. It may be that a joint power to adopt is not familiar to Hindus. But, where such a power is given, it cannot be regarded as invalid or construed as if it were really a several power. Balakrishna Pillai was a lawyer and it cannot be said that he was unfamiliar with joint powers.
Sri D. Ramaswami Aiyangar has contended that as the primarty desire of every Hindu will be to have a son, a power of adoption granted by him should be construed in such a way as tom effectuate that purpose. In other words, learned counsel contended that although there might be a joint power such power should be construed liberally so as to enable any one of the two windows to adopt a son, for otherwise the main intention of the grantor of the power would be defeated. Reference was made to the decisions in Akhoy Chunder Bagchi v. Kalapahar Haji, ILR 12Cal 406 (PC) and Ranjitlal Karmakar v. Bijoy Krishna Karmakar, ILR 39 Cal 582. In neither of these case was the power joint one. In the former case the husband first addressing the elder of the two wives said "You......... may adopt three sons successively". Then addressing the younger wife he said "You....... may adopt three sons successively." The Privy council Held that such authority, which gave similar power to the two windows, did not authorise simultaneous adoptions. In so doing, their lordships laid down the following rule:
"In construing it their Lordships would consider that the person giving the authority intended his windows to do that which the law allowed, and not to do something which was, if not absolutely illegal very unusual and not practised amongst Hindus"
In ILR 39 CAL 582, the husband granted an anumatipatra inn favour of his two wives thus:
"I am giving permission in writing that when I shall be no more each of my two wives shall be at liberty to adopt three sons successively, that is, one after another, and shall lead a moral life."
It was held that the authority cannot be construed so as to permit simultaneous adoptions. But, as we have indicated above a joint power of adoption is not invalid under the law. Where such a power has been given, it should be construed as such and not as an individual power on the basis of any assumed or presumed intention on the part of the donor of the power. To do so will be to run counter to his intention; for the intention can be gathered only from the terms of the powers.
(7) In Venkata Narasimha Appa Rao v. Parthasarathi Appa Row, ILR 37 MAD 199 (PC) the privy Council recognised that a power given to more than one wife to adopt was not necessarily invalid. In that case a joint power was to two windows given. On the death of the donees of the power, the power itself was held to have come to an end. As pointed out in Tirumangalaratnam v. Butchayya, ILR 52 Mad 373: (AIR 1929 Mad 11) from the mere fact that both the Windows are the donees of the power to adopt, it should follow that the power must be exercised by both or with the concurrence of both, and any adoption made by only one of the 3windows would be open to the objection that it was not made in terms of the power. In Lachmi Prasad v. Mst. Parbati, ILR 42 All 266: (AIR 1920 All 166) a Hindu testator conferred on his two windows an authority to adopt stating "They may, if necessary, adopt a boy........... " The authority was construed by the learned Judges as amounting to a joint authority requiring first a joint agreement to adopt, next the selection of an heir by both the wives and finally, a formal legal adoption. It was further held that if one of the joint donees of the power were to die, the survivor would not be competent to perform the act which, by the very directions of the testator, required the concurrence of both. This is sufficient to dispose of the contention of the learned counsel for the appellant that a joint power to adopt given to two windows must always be construed as an individual power to each one of them. Therefore on Meenakshi Achi's death, the joint authority given by Balakrishna pillai came to an end and there was no subsisting authority in Swarnathachi when she in the year 1942, proceeded to take the appellant in adoption.
(8) The appeal fails and is dismissed with costs. Them court fee due to the Government will be paid by the appellant.
(9) Appeal dismissed.