John Wallis, C.J.
1. This is an appeal from a decree of the District Judge of Ganjam dismissing the suit brought by the plaintiff to recover the Zamindari of Chinnakimidi as the adopted son of the deceased Zamindar, Beojo Kishore, who died in 1905, leaving a widow but no issue, and was succeeded by the senior collateral, one Boishnava. Boishnava having died a few days after his succession, the estate descended to his son Purushotham and passed on his death in October 1915 without issue to his younger brother Kunja Behari, the present defendant, who was in possession and enjoyment when Brojo Kishore's widow on the 5th November 1915, purporting to act under an authority given by her husband, adopted the plaintiff, for whom it is now claimed that this adoption divested the estate which had till then been vested in the defendant. Brojo Kishore was himself an adopted son, and his adoption was the subject of a suit which came before the Privy Council in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo 11 Mad. Jur. 188 : 3 Suth. P.C.J. 268: 1 Ind. Dec. 45. After his death his adoptive mother, who was the widow of Adikonda, the previous Zemindar, purported in 1907 to adopt another boy. His suit to recover the Zamindari was finally dismissed by the Privy Council in the present year in Sri Madana Mohana Ananga Bheema Deo v. Sri Purushothama Ananga Bheema Deo 46 Ind. Cas. 81: (1918) M.W.N. 621 : 23 C.W.N. 177 , on the ground that at the data of the adoption the authority to adopt which had been conferred upon Adikonda's widow had been extinguished.
2. The District Judge has dismissed the present suit on the ground that the oral authority relied on was not proved, and that the written authority, though in his opinion sufficiently proved, was inadmissible under Section 49 of the Indian Registration Act, written authorities to adopt 'not conferred by a Will' being compulsorily registerable under Section 17 of that Act. The District Judge states that it was practically conceded before him that the evidence of a separate oral authority to adopt was insufficient and so far we entirely agree with his view of the evidence. We have next to consider whether he was right in holding that the written authority on which the plaintiff relied in the alternative was not an authority to adopt conferred by a Will as, if it was not, the plaintiff's suit necessarily fails. Will is defined in Section 3 (57) of the General Clauses Act, Act X of 1897, as including, unless there is anything repugnant in the subject or context, 'a codicil and every writing making a voluntary posthumous disposition of property' and the word as used in Section 17 of the Registration Act must be viewed in the light of this definition. It is quite clear that a mare authority to adopt, though revocable and taking effect fondly on the death of the person conferring the authority, cannot be considered a Will for the purposes of the section, or even apart from the section. Musammat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry 10 M.I.A. 279 : 1 Suth.P.C.J. 574 . Nor is it enough that the document should purport to be a Will, as in the present case. To make it a Will it is necessary that it should contain a disposition of property in addition to the authority to adopt. The authority is in the following terms: 'l have been laid up with severe bodily illness for about the last seven months. Consequently having had serious misgivings and not having been blessed till now with an Aurasa son for want of divine favour, I consent to your adopting a son at your pleasure and to year managing the estate in the best manner possible. None of my heirs shall have any ground for raising disputes about this. With my full consent the Will has been executed.' The effect of these words has been strenuously contested before us. Mr. K. Srinivasa Aiyangar for the plaintiff contended, in the first place, that they constitute the widow executrix by implication as from the date of the death and purported to vest in her not only her husband's separate estate, if any, but also the Zamindari itself, which, by virtue of the Impartible Estates Act, 1904, passed on bis death by operation of law to his collateral Boishnava, who was the next heir according to the custom of succession prevailing in the estate. I am unable to accept this contention, because the power of management appears to be conferred as incidental to the adoption. Mr. Srinivasa Aiyangar then pointed out that executor-shipis could be limited so as to come to an end at a fixed date or to commence from a fixed date, and asked us to hold that the widow was constituted executrix by implication at least as from the date of the adoption, and he contend-ed that the words used did not confer a mere guardianship or power of management during the minority of the adopted boy, as in the case of Seshamma v. Chennappa 7 Ind. Dec. 331 relied on by the other side, seeing that the management is not in terms limited to the minority of the adopted boy. This is an ingenious contention, but 1 do not think we should be justified in the circumstances of this case in raising an implication of executorship to commence at the date of the adoption. The Zemindar's power of testamentary disposition over the Zamindari had just been taken away by the Impartible Estates Act, as he well knew, seeing that no estates were included in the schedule of impartible estates without the assent of, or at least notice to, the proprietors. He knew perfectly well that on the adoption the Zamindari would vest in the adpoted son for his natural life, and it seems to me to be the better construction to read the power of management as incidental to the exercise of the power of adoption and as limited to such management of the Zamindari as he had power to provide for, viz., management during the minority of the adopted boy. I do not think there is any authority for the proposition that the appointment of a manager or guardian to the property of another is a disposition of property sufficient to satisfy the definition of a Will. In Musammat Fanny Barlow v. Sophia Eveline Orde 13 M.I.A. 277there was an express gift to the two wives on trust, and not a mere power of management. So too the Ecclesiasti-al Courts bad no jurisdiction to grant Probate of a mere appointment of guardianship as it did not pass goods or goods and lands. Lady Chester's case 1 Vent. 207, Morton, In the goods of (1864) 3 Sw. & Tr. 422: 12 W.R. 320 and Bukthawar Mull Sowcar, In re. 8 Ind. Dec. 490. This is sufficient to dispose of the appeal, but I think it desirable in the present case to refer to the other questions which have been argued before us. The District Judge has discussed the question whether the authority to adopt, Exhibit A, has been duly proved in a very careful judgment and has concluded in its favour, not, be admits, without some hesitation, a hesitation which is traceable in his comments on the more or less unsatisfactory witnesses who have been called to prove it.
3. The District Judge did not, I gather, accept the contention for the plaintiff that the previous history and existing circumstances of the family make it highly probable that Brojo Kishore would have conferred a power of adoption on his wife. Brojo Kishore was the natural brother of the Zemindar of Peddakimidi, the present plaintiff's-father, and had been adopted in the sixties by the widow of Adikonda, Zemindar of Chinnakimdi, both families being descended from a common ancestor. The defendant's grandfather Raghunatha, who belonged to the junior branch of the Chinnakimidi family, claimed the Zamindari in the year 1852, on the ground that Adikonda was illegitimate. and contested the adoption by Adikonda's widow of Brojo Kishore in a litigation which was disposed of by the Privy Council in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo3 I.A. 154. There had also been litigation between the defendant's father Boishnava and Brojo Kishore as to the amount of maintenance to which the former was entitled as a junior member of the family. It appears from the records that the High Court increased the monthly allowance fixed by the District Judge to Rs. 500, and Brojo Kishore appealed to the Privy Council who dismissed his appeal in 1900. Later in the same year, we find him giving the defendant's brother Purushotham a letter of recommendation, Exhibit I, which would seem to show that relations between them were no longer strained, and there is evidence that they visited him in his last illness. If Brojo Kishore's natural brother, the Zemindar of Peddakimidi, had had sons, there might have been a greater inducement to adopt, but he had then lost the two children who had been born to him, so that the junior branch were the only members of the family, in these circumstances Brojo Kishore might or might not have decided to give his wife a power of adoption. There seems to be no great balance of probability either way.
4. On the other hand, if he did so decide, it Seems strange that he did not take more effective steps to put his wishes beyond all doubt, especially as be must have known how keenly the junior branch had disputed the authority to adopt in his own case. The ordinary thing for a Zemindar of his position to do on giving authority to adopt in his last illness would have been to send an arzi to the Collector mentioning the fact, or he might have registered the authority. Registration of Wills is not compulsory, and failure to register is often entitled to little weight; but in the present case it is shown that on the very day the written authority is said to have been executed the Sub-Registrar was sent for by the deceased to come and register documents which he had to execute, that the documents were executed on the 19th, that the Sub-Registrar came two or three times when the Zemindar was unable to see him, and that finally the two documents Exhibits VIII and IX were registered on the 28th. Having regard to the general circumstances and to what had happened as to his own adoption, I cannot but regard it as highly suspicious that there was no question of registering the authority to adopt on these visits of the Sab Registrar.
5. The next thing is that nothing was said to the Deputy Collector when he visited the palace on the day of the death, If the plaintiff did not call him to speak to having heard of the adoption, the defendant should have put him into the box to inform the Court what passed at the interview so as to enable us to judge whether the authority to adopt would naturally have been mentioned if it existed; In his absence we cannot, in my opinion, draw any inference as to this.
6. It was on the occasion of the Collector's visit on the 13th, nine days after the death, that the Exhibit A first saw the light of day. The interval is not itself suspicious, although it was quite long enough for the preparation of a forged authority. It was not presented to him by the widow but by the Zemindar of Peddakimidi, the natural brother of the deceased and the father of the boy subsequently taken in adoption by the widow.
7. There was nothing suspicious about this, but this Zamindar's subsequent conduct and his own admissions make it necessary to examine carefully the evidence as to his part in these transactions. His own story is that he decided to make a lakh of rupees for himself out of the situation that arose on the death of Brojo Kishore by patting forward an unfounded claim to the estate based on false allegations that Boishnava's father Ragunatha and his son Purushotham were both illegitimate The claim was utterly baseless and no sensible person would have paid him anything for withdrawing it, if it had stood alone. The authority to adopt claimed for the widow made all the difference, and enabled the Zemindar, filling the triple role of the widow's representative, rival claimant to the estate and arbitrator between the widow and Purushotham, the next male heir, to bring about a settlement by which, in consideration of two villages being assigned to her by Purushotham, the widow agreed not to adopt any one but one of Parushotham's sons; and Parushotham agreed to pay the Zamindar Rs. 70,000 on account of his unfounded claim and for bringing about the settlement and undertaking not to give a son in adoption to the widow without Purushotham's consent, a settlement on which he has since gone back by giving his son, the present plaintiff, in adoption to the widow and so giving rise to the present case. I refer to him as the widow's representative, because she appears to have left everything in his bands and was not separately represented except on one occasion formally.
8. After the Collector's visit on the 13th September, Purushotham applied for registration of the estate in his name, and the Zemindar, according to his evidence, two or three days after the Collector's visit, engaged his Vakil Mr. Jogiah to put in a petition embodying his own unfounded claims. No one was engaged for the widow until the 25th September, the day fixed for the enquiry, when the Zemindar's Vakil sent for a second grade Pleader, defence witness No. 2, handed him a Vakalat, which I assume had been duly obtained from the widow though she denies all knowledge of this particular proceeding, and introduced him to an Uriya gentleman on whose instructions he drafted a petition for registration in her name and repeated the unfounded allegations as to the illegitimacy of Purushotham. This petition was copied out in Mr. Jogiah's office. The Pleader appeared before the Collector later in the day and presented his petition and there his connection with the case ended. Some witnesses are said to have been examined but Purushotham's claim to the estate pending an adoption was so clear that the Collector seems simply to have directed registration in his name. The evidence of the Zemindar and the widow as to what followed is far from clear. The next thing we really know is that on 5th December application for registration of Exhibit A was made to the Sub-Registrar on behalf of the widow. It then became his duty to issue notices and hold an enquiry, but before the day fixed for the enquiry the disputes were settled on the terms already mentioned, Two Vakils were then sent to Madras, one Mr. Jogiah acting, it is to be observed, for Peddakimidi and the widow, and the other acting for Purushotham, to consult Vakils there. They apparently bronght back the drafts of V series Exhibits, the first being between Purushotham and the widow and the second between Purushotham and the Zemindar of Peddakimidi. Exhibit V represents Peddakiinidi as an arbitrator and the settlement between the widow and Purushotham as haying been effected on his advice, but says nothing of the Rs. 70,000 he got from one of the parties for bringing it about. Exhibit Va is more,, explicit.
9. In summing up the evidence in support of the execution of Exhibit A the District Judge observes that the Zemindar of Peddakimidi was a person whose evidenoe should carry weight; though of course he was interested. The Zemindar's conduct, he says, was not particularly honest but he did not think it lent any support to the theory that Exhibit A is a forgery. No doubt, the fact that the Zemindar availed himself of the existence of Exhibit A to extract a large sum of money for himself on the strength of a wholly unfounded claim does not show that as part of his scheme he induced the widow by a promise of two, villages for herself to join with him in setting up a forged authority from her husband, but it does show that he is a man of few scruples. His interest in obtaining this great estate for one of his sons is enormous, and has induced him to break the undertaking, for which he was paid, not to give a son in adoption to the widow without Purushotham's consent. In these circumstances I cannot agree with the District Judge that his evidence that Brojo Kishore spoke to him about the oral and written authority is entitled to any weight. On the contrary, I think it should be wholly discarded.
10. With reference to the argument that the terms of the settlement embodied in Exhibits V and Va show that Exhibit A was a genuine document, I agree with the District Judge that that is not a safe test, as it seems to me that these terms might have been arrived at whether Exhibit A was genuine or the reverse.
11. The fact that the plaintiff's advisers were not in a position to put Brojo Kishore's Dewan, Ramakrishna, into the box has next to be considered. He was the only person of any position among the attesting witnesses, and, according to the plaintiff's case, was responsible for the drafting of Exhibit A which he is said to have copied from an old. Will which has not been produced, He was one of the witnesses to the plaintiff's adoption, and, as pointed out by the District Judge, it was not alleged that he had turned hostile. The evidence of his not being at home when sent for is not entitled to serious consideration. His evidence might have thrown much light on many aspects of the case, and I think the defence were justified in commenting strongly on the fact that he was not called.
12. His absence was by no means supplied by an undated pencil note Exhibit B, which a Vakil swears to have received from him about the time when the alleged authority is said to have been given. It says the writer was starting in an hour and asks the Vakil to draft a Will by which the Rajah can authorise the Ranee to adopt a son when she likes. He never cam(c), the Vakil did nothing and never heard any more about it. Consistently with this, the Raja might have thought of adopting and abandoned the idea. In the unexplained absence of the writer, it proves nothing.
13. The District Judge does not, I think, place any reliance on the two attesting witnesses and the writer of the Will who were called and I agree with him. He does not in his summing up rely on the evidence of the widow and in so far as he relies on the evidence of the Zemindar of Peddakimidi, I am unable for reasons already given to agree with him. Then we come to the evidence of Dr. Powell. Brojo Kishore was attended in his last illness by the District Surgeon as appears from Exhibit I Eq. The witness, who was then in the Subordinate Medical Service, says he had previously attended him and that he saw the Zemindar on two occasions before his death, on one of which he spoke of having given an oral authority to adopt, while on the next occasion he sent for the written authority and showed it to the witness. This must have been after the 14th and at a time when Brojo Kishore was being attended by the District Surgeon, a fact of which the witness was not aware. The District Judge observes 'that the witness is a man of respectable position, but has been the medical adviser of the Zemindar of Peddakimidi for the last twelve years, and he is certainly not disinterested,' The District Judge declined to act on his evidence as to the oral authority given by Brojo Kishore, and has observed that there was no necessity to send for the Will and show it to the witness. He did not mention either of these conversations to any one' at the time, and it seems hardly safe, when the issues are of much magnitude as in this case, to act on his recollection of two conversations eleven years afterwards.
14. The District Judge has also relied to some extent on the signature in English characters to Exhibit A. According to Dr. Powell the deceased had been suffering from functional disease of the heart evidenced by palpitation, giddiness and fainting fits. Exhibit II shows that as far as back as February he had ceased to initial documents as before. The signatures to Exhibits VIII and IX on the 19th August, five days after Exhibit A, are in a very weak and shaky hand such as might be expected from his condition. The signature to Exhibit A is in a very firm hand comparatively, as are the initials made in the early part of 1906 in Exhibit II, before he fell ill. We have not been supplied with specimens of his fall signature when in good health. If the signature in Exhibit A is a forgery, it was no doubt copied from one of his signatures when in good health. If it is genuine, I should have expected it, having regard to his condition, to show more of the shakiness to be found in his signatures in Exhibits VIII and IX on the 19th, five days later, and again in the same documents on the 28th. In these circumstances I cannot agree with the District Judge that the evidence as to the signature strengthens the case for Exhibit A. Looking at the evidence as a whole I should find great difficulty, if it were necessary to decide the point, in holding that Exhibit A had been proved by clear and satisfactory evidence on which it would be safe to act.
15. The seventh issue raises the question whether the adoption is invalid as being in contravention of the settlement arrived at on the 27th January 1907, Assuming that Brojo Kishore gave his widow-authority to adopt by Exhibit A, I agree with Mr. K. Srinivasa Aiyangar's contention for the plaintiff that an agreement by which she undertook not to adopt in consideration of the assignment of two villages to herself was void as contrary to public policy, the authority being given to her not for herself but for her husband.
16. The eighth and ninth issues raise the question whether at the date of the adoption the widow's authority to adopt had come to an end by reason of the devolution of the estate from Boishnava, her husband's heir, to his son Purushotham and whether the adoption if valid could divest Purushotham and his heirs. This question, in my opinion, is concluded by the recent decision of the Privy Council in Sri Madana Mohana Ananga Bheema Deo v. Sri Purushothami Ananga Bheema Deo 46 Ind. Cas. 81: (1918) M.W.N. 621 : 20 Bom. L.R. 1041 deciding as regards this very family that the power of Brojo Kishore's mother to adopt to her husband Adikonda came to an end when their adopted son Brojo Kiahore attained full age and so full capacity to continue the line either by natural-born sons or by adoption. If this be the true rule' of limitation it is inapplicable here, as adoption by the widow is the only way in which Brojo Kishore's line can be continued. The succession to the estate of Bjishnava and his line was, in my opinion, in their Lordships' language, only provisional and subject to the emergence of a male heir to Brojo Kishore, which is the position of the plaintiff if the authority to adopt is held to be duly established. This, however, has not, in my opinion, been established, and the appeal, therefore, fails and must be dismissed with costs.
Seshagiri Aiyar, J.
17. The suit is to recover possession of the Zamindari of Chinnakimidi.
18. The plaintiff, who is the natural son of the Zemindar of Peddakimidi, was adopted in 1915 by Rathanamani Mahadevi in pursuance of an alleged authority to adopt given by her deceased husband Brojo Kishore. Brojo Kishore, who was himself the adopted son of Adikonda Deo, died on the 3rd September 1906. It was his adoption which led to the suit which was ultimately decided in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo 3 I.A. 154 : 1 Ind. Dec. 45 On the date of his death his adoptive father's brother's son Boishnava Deo was alive. This latter died on the 18th September 1906, and was succeeded by Purushotham Deo who died in October 1915. The defendant is the brother of Purushotham Deo. The District Judge was of opinion that the alleged authority to adopt was true ; but as that was not registered it could not be acted upon. An oral authority to adopt was also put forward and was found against. The District Judge, however, expressed no opinion on the question whether Brojo Kishore's widow, the plaintiff's next friend, was estopped from making the adoption as she was bound by Exhibit V. He also left undecided the question whether the adoption, if otherwise valid, was in-effectual as it was not made to the last male holder. In the result, he dismissed the suit, and the plaintiff has appealed. In this Court there were elaborate arguments on all the issues. I shall first deal with the question of the genuineness and validity of the written authority to adopt, as both sides claimed that the value to be attached to the evidence on the question of oral authority would largely depend upon our decision on this question. The learned District Judge, who had the advantage of seeing the witnesses, came to the conclusion that Exhibit A, the alleged authority, was in fact executed by Brojo Kishore. I confess that there are great difficulties in forming a definite conclusion on the question. There are some considerations which weigh heavily against the conclusions of the trial Judge. The document is said to have been attested by six persons. The first signature is that of Ononti Rajaguru. The name suggests that he was the family priest of the deceased. This man has not been examined. He is apparently alive and there is no explanation for not putting him into the witness-box. The next signature is that of one Ramakrishna Rao, Dewan of the deceased Zamindar. He is still alive and has not been examined, Plaintiff's witness No. 8 was examined to prove that all possible endeavours were made to procure the attendance of the Dewan. I am not impressed by this evidence. The Dewan would naturally be the person who would have attested Exhibit A if it was in fact executed. He attested the deed of adoption Exhibit O executed in November 1915. Certainly till then he must have been friendly to the plaintiff's adoptive mother. It was argued by Mr. K. Srinivasa Aiyangar that if this person were available there was no reason why plaintiff should have willingly failed to examine him, inasmuch as it was not suggested that his signature in Exhibit A was forged. It is impossible to speculate upon the reasons which have led plaintiff's advisers not to examine this witness. It may be that this witness has been won over by the other side. Or it may be that he repents of his part in bringing into existence Exhibit A. Whatever may be the reasons that have induced the plaintiff not to insist upon a warrant of arrest being issued for his attendance, there can be no doubt that the most important evidence available in the case has been kept back from the Court. The learned District Judge has weighed the evidence with painful impartiality. There is only one adverse remark that I would make against the judgment. If I were trying this case I would have examined the Dawan as a Court witness having regard to the largeness of the property at stake and to the important evidence which this man alone could give. It is a very serious defect in the evidence on the side of the plaintiff that this man has not been examined.
19. The next circumstance is that Exhibit A has not been attested by the Zemindar of Peddakimidi who says that he was in the habit of visiting Brojo Kishore during his last illness. They were natural brother, and notwithstanding the fact that a suit relating to boundary dispute was pending about the time between them, it seems unlikely that they were not, on good terms. The medical attendant of the Zemindar has also not attested Exhibit A. I shall refer to his evidence later.
20. The writer of the Will was a Sub-Postmaster on a very small salary. It is true he was also employed by the Zemindar. But it seems strange that a document of this description should not have been drafted by the ordinary legal advisers of the Zemindar. Exhibit B has been produced to show that the Zemindar had intended to authorise his widow to adopt. It is a letter written in pencil by Ramakrishna Rao, the Dewan, and was addressed to Mr. Ramanujaswamy, a High Court Vakil. I see nothing suspicious in its production. Mr. Ramanujaswamy, a High Court Vakil of some standing, who, the Judge says, is a respectable Vakil, has deposed that it was in his office from the time of its receipt. It bears no date, but the witness says that he received it about the end of July 1906. The witness further identifies the signature and writing of the Dewan. Here again we are met by the difficulty of not having the Dewan in the witness-box to speak to the circumstances which led to Exhibit B being addressed to Mr. Ramanujaswamy. I am prepared to hold, notwithstanding the comments of the learned Advocate-General against the deposition of plaintiff's witness No. 2, that Exhibit B was written by the Dewan and was sent about the end of July 1906 to the witness. But the document does not help us very much. We do not know whether the Zemindar asked the Dewan to have a Will prepared, as the letter says. It may be that the Dewan of his own accord suggested the drafting of a Will. Why ultimately Mr. Ramanujaswamy or some other professional gentleman was not asked to prepare a Will is not explained. The suggestion that as the Will was not a complicated one it was considered enough to draft one on the model of a Will which gave authority to Adikonda's widow to adopt Brojo Kishore does not meet the difficulty.
21. Then again the Will was not registered. The learned Advocate-General referred to Exhibit II series to show that the Sub-Registrar was in attendance in the palace of the Zemindar about this time to register two other documents, Exhibits VIII and IX. On the 14th of August the Sab-Registrar was requisitioned to come to the palace. On the 17th, another letter (IIq) was sent with the necessary fees for the attendance of the Sub-Registrar. On the 18th of August this officer was in the palace; bat Brojo Kishore excused himself from signing Exhibits VIII and IX on the ground that he was indisposed. The Sab Registrar returned to Aska and came back on the 27th of August on that date also Brojo Kishore was unable to exert himself. On the 28th the two documentor were registered. It was said that having had a Sub-Registrar in the palace on these two occasions, if Exhibit A was really executed on the 14th of August, it would have been registered. The answer of Mr. K. Srinivasa Aiyangar is not unreasonable. Brojo Kishore did not want to exert himself even when the Sub-Registrar, was actually there to register a compulsorily registrable document. Would he go out of the way to register a document which was not compulsorily registrable There is force in this observation. I am not prepared to attach very great weight, therefore, to the non-registration of Exhibit A.
22. Then it was said that the Will was not shown to the Deputy Collector, when this officer was there to see that there was no dispute regarding the possession of the Zemin properties. I do not think there is any force in this contention. The Deputy Collector was there to prevent unseemly disputes, should there be any. Ho was not charged with making any enquiries as to succession to the Zemindari. Moreover, when the corpse of the deceased Zemindar, was in the palace, it is not reasonable to suggest that the bereaved widow should have produced the document before the Revenue Officer. It is opposed to all notions of decency entertained by Hindus in this matter.
23. Then it was said that an arzi should have been sent to the Collector intimating that an authority to adopt was given. ' There have been instances in Zemindari families where this procedure has been adopted. Bat having regard to the fact that on the 13th of September, ten days after the death of Brojo Kishore, Exhibit A was shown to the Collector who went there to make enquiries, I am not satisfied that this circumstance is entitled to any serious consideration,
24. Now I shall deal with the circumstances relied on by the learned Vakil for the appellant. The persons who have attested the document are certainly those who might ordinarily have been expected to attest a document like Exhibit A, There was a Rajagaru or the family priest; there was the Da wan; there was the. Indian physician; there was the personal attendant who was also the treasurer of the household; there was the bead of the peons; and there was the person who was in the habit of shampooing the Zemindar. These are the men who might ordinarily be expected to be about the Zemindar during his serious illness. Against this must be said that the Zemindar of Peddakimidi, the natural brother of Brojo Kishore, should have attested the deed if it was really executed. I do not attach much significance to the omission, because at that time the Zemindar of Peddakimidi had himself no son and Exhibit A purports to give unlimited discretion to the widow to adopt anybody she chose. It may be that Brojo Kishore did not think it worth while to ask his natural brother to attest such a document. In favour of the Will it was also said that Exhibit A was produced before the Collector within ten days. This is a circumstance which is entitled to weight. It was also pointed out that Exhibit A is the kind of document which would have been executed by the deceased if he intended to empower his widow to adopt. Farther the servants and, the Dawan who have attested the document cannot be said to have been under the influence of the widow, because the moment Brojo Kishore died issuless Baishnava Deo became entitled to the Zemindari. The strongest circumstance, however, in favour of the genuineness of the Will is Exhibit V. The facts that led to the execution of this document must be stated in some detail. After the death of Brojo Kishore the parties were not friendly to each other. On the 19th of September, the day after the death of Boishnava Deo, Parushotham Deo sent a petition to the Collector in which he referred to the death of Brojo Kishore and to that of his father, and prayed that he might be recognised as the lawful successor to the Zemindari of Chinnakimidi. On the 25th of September Rathinamani Mahadevi, Brojo Kishore's widow, sent Exhibit III to the Collector in which she stated that a Will, dated the 14th August 1906, empowering her to adopt a son was left by her husband, that under the Hindu Law she was the guardian of the boy to be adopted, and she as the widow of the late Zemindar was entitled to succeed to the estate in her own right. There is no reference in the petition of Purushotham Deo to the Will of Brojo Kishore. The fact that the Collector came to the palace on the 10th of September and that a Will was produced before him must have been known to Boishnava Deo and his sons. I cannot accept the contention of the learned Advocate-General that Purushotham Deo was not aware that a Will had been set up as early as the 10th of September. Therefore, the omission to make any reference to the Will in this petition of Purushotham Deo is significant. On the 25th of September there was a petition by the Zemindar of Peddakimidi, in which it was alleged that Boishnava Deo and his son were illegitimate, that the petitioner had learned that a Will was left by Brojo Kishore authorising his widow to adopt a son, and prayed that the claim of Purushotham Deo to be placed in possession of the estate should be refused and that his name should be registered as the Zemindar of Chinnakimidi. All these three petitions were posted for enquiry sometime in October and the Collector directed that the Zemindari should be registered in Purushotham's same, Subsequently in December Exhibit A was presented for registration. While matters were at this stage, agreements V and Va were executed by Purushotham Deo. The terms of the agreement were that Purushotham Deo's right to Chinnakimidi should be recognised, that Exhibit A should be withdrawn from the office of the Sub-Registrar, that Rathnamani Mahadevi should not insist upon her right to adopt, that the adoption, if ever made, should be with the consent of Purushotham Deo, that two villages should be absolutely given to Rathnamani Mahadevi, that if a son was born to Purushotham Deo within ten years from the date of the agreement and if Mahadevi were inclined to adopt a son, that son should be adopted by her. One other clause of the agreement is that if Purushotham Deo did not carry out his part of the agreement Mahadevi was at liberty to exercise her right of adoption. This agreement was the result of a mediation by the Zemindar of Peddakimidi. How a party, who himself had claimed adversely to Purushotham Deo and to some extent adversely to the widow, came to be the mediator passes one's comprehension. This Peddakimidi Zemindar got Rs. 70,000 as a reward for bringing about a reconciliation between Mahadevi and Purushotham Deo. His conduct seems to me not to have been above board. But the significance of this compromise is strongly in favour of the genuineness of Exhibit A. It is true that both Mahadevi and the Zemindar of Peddakimidi disputed the legitimacy of Purushotham Deo. But it is clear that it was a malicious attack and that there was no foundation for the imputation. On a previous occasion Boishnava Doe's father Raghunatha Deo had disputed the legitimacy of Adikonda Deo, but at no time was the legitimacy of Raghunatha Deo and his children ever questioned. Therefore this imputation regarding illegitimacy could not have been seriously made. Why was it then that Purushotham Deo consented to the terms embodied in Exhibit V As I said before, during all the time the enquiry was pending before the Collector regarding succession to the Zemindari. Purushotham Deo does not appear to have put in writing any paper impugning the genuineness of Exhibit A. He had succeeded to the Zemindari. Therefore, if he believed that the Will was a fabrication, he would not have agreed to the terms of Exhibit V, It is significant that he agreed to give his own son in adoption. He seems to have been anxious that his branch should have the Zemindari. Until the adoption he would undoubtedly be the Zemindar. And if any adoption was to be made he stipulated that his son should be adopted. As regards the Zemindar of Peddakimidi he had no children living at the date. Therefore, he was losing nothing by consenting to the terms contained in Exhibit V. He had been paid a large sum of money. It is in evidence that a son and a daughter born to him had died and, therefore, he was not sure that he would have children enough who, in addition to succeeding to his own Zemindari, could be spared to be given in adoption to Brojo Kishore. If we look at the language of Exhibit Vb which was executed between Purushotham Deo and the Zemindar of Peddakimidi, it looks as if both of them recognised the genuineness of Exhibit A, To my mind the conduct of the parties at this time is the strongest piece of evidence in favour of the genuineness of Exhibit A.
25. Then there is the deposition of Dr. Powell. I am free to confess that his evidence has not impressed me much, but there is the fact that the learned District Judge who had the witness before him believed his evidence. Other witnesses have supported Exhibit A. Although, as the District Judge points out, their position is not such as would warrant a Court of Law in basing its decision solely upon their testimony, it must be said that in cross-examination nothing has been elicited against their credibility.
26. Last of all there is the question of the identity of the handwriting of Brojo Kishore. The formation of characters notwithstanding the very able adverse comments of the learned Advocate General seems to tally with the recognised signature of the deceased. It is curious that no signature of Brojo Kishore prior to the 14th of August has been produced. The respondent contends that it was the duty of the appellant to have produced documents anterior to the execution of the Will. It is answered that immediately after the death of Brojo Kishore the Zemindari and the papers connected with the Zemindari passed into the hands of Purushotham Deo and are still in the possession of his brother, and, therefore, if the signatures before the 14th of August 1906 were different from that contained in Exhibit A, the respondent could easily have produced documents to substantiate his case. The initials contained in Exhibit II do not help one to test the signature in Exhibit A. The only two documents from which a comparison could be drawn are Exhibits VIII and IX. The signatures in them were affixed at a time when the Zemindar was getting worse from day to day and when he was unwilling to make an exertion even to sea the Sub-Registrar. Naturally they are very shaky. On the whole I am not prepared to say that the signature in Exhibit A is not that of Brojo Kishore. Mr. Ramanujaswamy, who has had the opportunities as the Vakil of Brojo Kishore of being acquainted with his handwriting, swears that the signature is that of the deceased,
27. I have stated the objections and their answers very fully. If I had only the deposition of the witnesses before me without any idea of their demeanour. I would have felt inclined to say that Exhibit A was not satisfactorily proved. The absence of the Rajaguru and of the Dewan from the witness-box would have weighed very strongly with me. But as has been very often pointed out by the Judicial Committee, the question I have to put myself is, not what my decision would have been had I been a trial Judge, but whether there are sufficient grounds for not accepting the conclusion of a trial Judge on a question of fact. The District Judge has seen the witnesses. He has relied upon the evidence of Dr. Powell. He has not altogether rejected the testimony of Mahadevi and of the Zemindar of Peddakimidi, It is true that the latter is very much interested. But that has not weighed with the District Judge who has seen the witness to the extent of totally disbelieving his evidence. As regards the evidence of Mahadevi it must be said, as was pointed out by Mr. K. Srinivasa Aiyangar. that she does not gain very much by this adoption It may be that the adopted son may dispute the validity of the agreement Exhibit V. She cannot, therefore, be regarded as a very interested witness, and the learned Judge has attached some weight to her testimony. In these circumstances I am not prepared to say that I am satisfied that the District Judge was wrong in his conclusion, [ must, therefore, proceed to deal with this case on the footing that Exhibit A was executed by Brojo Kishore. I feel it safer to proceed on this basis as I have stated fully all the points in connection with the Will, and as it is clear that this litigation will not stop in this Court.
28. Now I shall proceed to deal with the next question of fact before dealing with the question of law. The learned Vakil for the appellant stated that the weight to be attached to the evidence relating to the oral authority to adopt would depend largely upon our conclusion as to the execution of Exhibit A. It is true, as was pointed out by him, that the written authority would have been preceded by some informal talk about the subject. Not with standing these considerations I See no reason to differ from the conclusion of the District Judge on this question. The strongest circumstance against the oral authority is that it was not mentioned in the petition to the Collector and it was not until November 1915 that this authority was set up. The only witness whose deposition need be examined with some care is that of Dr. Powell. He refers to a conversation with Brojo Kishore which, according to him, was interpreted by plaintiff's witness No. 5 in Telugu. P. W. No. 5 contradicts Dr. Powell on this point. Moreover on a question relating to an incident which took place ten years ago the memory of the moat respectable persons cannot be altogether relied upon. It may be that Dr. Powell did not hear what was said clearly or it may be that the conversation was not properly translated to him. Dr. Powell says that Brjo Kishore spoke in a very feeble voice. On the whole I see no reason to differ from the District Judge on this question.
29. I shall now deal with the first question of law arising on these two findings of fact and that is whether Exhibit A is a Will or merely an authority to. adopt. If it is the latter, not being registered it cannot be acted upon. There was some discussion at the Bar as to the reasons which led to Section 17, Clause 3, of the Registration Act being introduced. Apparently the Legislature was of opinion that an authority to adopt which would have the effect of transferring considerable property, should be registered. It at the same time recognised the fact that a Will was not compulsorily registrable. It was not intended to introduce any change in this respect, probably for the reason that a Will being ambulatory could be revoked, and consequently no right might pass under it. But the same reasoning applies to an authority to adopt. It is also ambulatory in its nature and can be revoked, Therefore, there seems at first sight no justification for making bare authorities to adopt compulsorily registrable. But it is not open to us to examine the reasons for the rule when the rule itself is plain and unambiguous. Two things are clear, (a) that a bare authority to adopt must be registered and (6) that a testamentary instrument need not be registered. Therefore when Clause 3 says: 'That authority to adopt a son not conferred by a Will shall also be registered,' it must be taken to have provided that the document must prima facie be a Will. It is well settled that the name of a document is not conclusive of its character. Therefore, by merely styling an instrument a Will the provisions of the Registration Act could not be got over. I shall, therefore, examine the contents of the document to see whether it is in essence a testamentary disposition. The definition in the General Clauses Act includes a codicil or every writing making a voluntary posthumous disposition of property.' The essence, therefore, of a Will is it is a posthumous disposition of properly. The document before us reads thus: 'I have been laid up with severe illness for the last seven months. Consequently, having had serious misgivings and not having been till now blessed with an heir apparent for want of Divine favour, I have consented to your adopting a son at your pleasure and to your conducting the management of the estate in the best manner possible.' Mr. K. Srinivasa Aiyangar laid stress upon the use of the expression 'Rajiabharam' in the Will, that is the burden of the Raj. The learned Vakil contended that ex facie the document gave the management of the Zemindari at once to the widow. I am unable to agree with this interpretation of the clause. The Impartible Estates Act was passed in the year 1904, and this Zemindari was included among those to which the Act applied. Consequently, Brojo Kishore must have known that he had no power of disposition over the estate as the Act aimed at withdrawing the power which the Judicial Committee in the case of Sartaj Kuari v. Deoraj Kuari 15 I.A. 51: 6 Ind. Dec. 182 had held an impartible estate owner possessed. There is no reason for imputing to Brojo Kishore any intention to violate the law. I am prepared to agree with the learned Vakil that if there was an invalid disposition of the property that would not affect the character of the document. Bat I do not think, having regard to the fact that the law was passed two years before the date of the alleged Will, that it was the intention of Brojo Kishore to convey the whole Zamindari at once to the widow. I think the right interpretation to be placed upon the clause which I have quoted is to hold that Brojo Kishore wanted his widow to adopt a son and to manage the estate on behalf of the adopted son as his guardian. I am unable to hold that the power of management was given independently of the exercise of authority to adopt. Mr. Srinivasa Aiyangar also contended that apart from the estate there were personal effects of Brojo Kishore which it might have been the intention of the testator to give to his widow. 1 do not think that that was the intention which operated on the mind of Brojo Kishore. His widow without any testamentary disposition would have been the heir to his personal effects and in the document itself there is no reference to these personal effects. It refers to the conduct of the management of the estate and not to the inheritance of the personal property. Therefore, in ray opinion, the power to manage the estate was regarded by the testator as subsidiary and incidental to the exercise of the power of adoption. In other words, there was no independent posthumous distribution of property. The decisions relied upon by the District Judge support him in the view he has taken. It is true that in the case of Seshamma v. Chennappa 7 Ind. Dec. 331 the question was whether the persons named were executors. The learned Judges say: 'We think, it is quite clear, that there was no intention to vest any property in them. They were only directed to protect the property during the minority. It is not the administration of the estate which they are told to carry out. But rather it is as guardians of the child whose adoption is contemplated that they are intended to act.' There were words in that document which indicated that the persons named were to be in possession of the property only during the minority of the adopted boy. Nonetheless the sentence I have quoted indicates that in the opinion of the learned Judges if the persons mentioned in the Will were only expected to act as guardians no property could vest in them. The next case of Somasundara Mudaly v. Doraisami Mudaliar 13 M.L.J. 283 is more to the point. There the document stated: 'I have given you authority to adopt Somasundaram and to have my obsequies and all other ceremonies performed by him. I have hereby given you authority to put him in possession of all the properties whioh I got under the decree * * * If you are not; willing to adopt the said Somasundaram you shall adopt anybody you please and put the property into his possession. You shall put also all the imtnoveable properties in my possession into the possession of the adopted boy.' The learned Judges say with reference to this document: 'That this is simply a statement of the consequences that should legally follow on the adoption.' Similarly in the present case, the power to manage may be regarded as a statement of the consequences which the testator intended to follow on the adoption. As regards Santhana Sooramma v. Santhana Mangayya (1913) M.W.N. 199, I agree with the learned Vakil for the appellant that the decision is wrong.
30. There was an elaborate discussion on both sides as to whether a power to manage as a guardian could be regarded as a testamentary disposition. There are some old oases to which the learned Advocate General has drawn our attention, where it has been held that a bare authority to manage as a guardian will not entitle the nominee to probate of the instrument. Vide Quick v. Quick (1864) 3 Sw. & Tr. 442 : 10 L.T. 619. It was there held: 'A Will which merely appoints a guardian ought not to be admitted to probate.' I do not think this is conclusive of the question whether there was a posthumous distribution of property. The mere fact that the particular instrument is not admitted to probate is not decisive of its being a non-testamentary instrument. It may now be taken as settled that where a document appoints an executor, probate can be granted of it, as such an appointment would involve a disposition of property. So also where a trustee is appointed. It seems to me that there is a very thin line of destination between the appointment of a guardian to manage and the appointment of an executor or a trustee to manage on behalf of the beneficiary. But even in India there have been oases in which it was held that the appointment of a guardian would not amount to a posthumous distribution of property. Bukhtawar Hull Sowcar, In re 8 Ind. Dec. 490 is one of those oases. In the present case I do not think that the document can be said to have constituted Mahadevi an executor or trustee. As I read it, the power to manage is to come into operation only when the adoption is made. In this country people are more conversant with the appointment of guardians than with the appointment of executors whose office is to begin at some future period. After all, what we have to see is what the testator intended, whether he intended that his widow should be executrix when and if an adoption is made by her, or whether what he intended was that when an adoption is made she should protect the adopted son as the heir to the property and manage the estate on his behalf. The idea of constituting a person an executor who is to exercise his functions on a contingency could not have been in the contemplation of Brojo Kishore. I am, therefore, of opinion that the natural meaning of the document is that Brojo Kishore intended his wife to adopt and after adopting to act as the guardian of his adopted son. On this ground and also for the reason that the power of management is not the primary object of the instrument but only auxiliary to the exercise of the power to adopt, I am of opinion that Exhibit A is not a Will but is only a power to adopt, and as such it ought to have been registered.
31. As we are told that the case is likely to be taken to the Judicial Committee, I think it desirable to deal with the other two contentions, although ray conclusion on the last question is enough to dispose of this case. The learned Advocate General contended that Exhibit V estopped Mahadevi from adopting the plaintiff. I am wholly unable to agree with this contention. Mr. K. Srinivasa Aiyangar pointed out, and very rightly, that it was not competent to the widow to give up a power which was not intended for her personal benefit. The object of Brojo Kishore was that a boy should be adopted who would perpetuate his line and perform his ceremonies. It was not open to Brojo Kishore's widow to give up this power. The learned Advocate-General referred to cases in which family arrangements have been upheld by the Judicial Committee and contended that Exhibit V evidenced such an arrangement. I do not think those authorities have any bearing on the present question. I am unable to see how Mahadevi can be said to have acted on behalf of the estate in entering into this agreement with Purushotham. In the first place she had no right to the estate, and secondly, she had no right to act on behalf of a person who was to come into existence at some future period. It may be she could have bound herself by a personal estoppel. That apparently is what the parties contemplated because there is a provision in the agreement penalising the defaulting party in damages. I do not wish to discuss those oases relating to powers of appointment quoted by the learned Advocate-General. In my opinion, there is not much analogy between a power of appointment and an authority to adopt. If there is any, the authority to adopt can at best be only likened to a special power of appointment. In the case of a general power large discretion is given to the donee because it is open to him to have appointed himself as the heir; but it has been held that in the case of a special power the donee ought not ordinarily to deviate from the directions of the testator. In this case the donee of the power to adopt was expected to exercise it not in her own favour but on behalf of her husband. Consequently it was not open to her to give up that right. Mr. Mayne in paragraph 119 expresses a doubt whether such a power could not be given up. He does not discuss the matter at any length. Assur Purshotam v. Ratanbai 7 Ind. Dec. 37 Suriya Rau v. Raja of Pittapur 13 L.A. 97 and Rambhat v. Lakshman Chintaman Mayalay 3 Ind. Dec. 415 seem to indicate that a power like this cannot be given up, After all, this authority is conferred to enable the donee to create a status, or in other words to bring into existence a person who would not only succeed to the property of her husband but would also be able to collaterally inherit to others. Such a creation of status involving such a bundle of rights could not be given up by the donee of the power. In Trevelyan's Hindu Law, page 102, and Sircar on Adoption, page 214, this view is accepted. The decision in Lala Kanhai Lal v. Lala Brij Lal 47 Ind. Cas. 207 24 M.L.T. 236: 20 Bom. L.R. 1048 relied on by the Advocate General has no bearing upon this question. There the person claiming to be an adopted son was held bound by a compromise which he was not allowed to repudiate when he became entitled to succeed as a reversioner. Moreover, even if Brojo Kishore's widow was estopped, in my opinion, that would not affect the rights of the adopted son. There was undoubtedly the authority of the husband and in pursuance of that authority plaintiff was adopted. What gave him his status was not dependent upon the personal estoppel against Mahadevi. For these reasons I am of opinion that Mr. K. Srinivasa Aiyangar is right in his contention that Exhibit V does not estop plaintiff from claiming the Zemindari. In this connection I may dispose of a short point relied on by the learned Vakil. He suggested that the agreement was brought about by the exercise of undue influence on Mahadevi. There is nothing to suggest that this lady was without advisers and was otherwise incapable of looking after her interests. I see no reason to differ from the District Judge on this question. Now comes the last question, namely, as to whether the adoption is invalid because it was not made to the last male holder. According to the learned Advocate-General, the last male holder must be taken to be Purushotham Deo ; and the contention is, as the adoption was not made to him, it is invalid. I do not propose to go into this question at any length, because I had to examine this theory in my decision in Madana Mohana v. Purushothama 24 Ind. Cas. 999, which has since been affirmed by the Judicial Committee in Sri Madana Mohana Ananga Bheema Deo v. Sri Purushothama Ananga Bheema Deo 46 Ind. Cas. 81 : (1918) M.W.N. 621: 23 C.W.N. 177 I ventured to suggest in my judgment that an impartible Zemindari is nonetheless joint family property and that therefore the theory that the adoption must be made to the last male holder has no application to such property, I also pointed out that this theory is inconsistent with many decisions of the Judicial Committee. The learned Advocate General argued that the proposition that an impartible Zemindari is the joint family property must be taken to have been overruled by the decision of the Judicial Committee in the recent Pittapur maintenance case. Sri Rajah Rao Venkata Mahipathi Gargadhara Rama Rao Bahadur v. Sri Rajah Venkata Kumara Mahipathi Surya Rao Bahadur Garu, Raja of Pittapur 47 Ind. Cas. 354 : 5 P.L.W. 267: (1918) M.W.N. 922. In that case Lord Dunedin in delivering the judgment of the Board said: 'An impartible Zemindari is the creature of custom, and it is of its essence that no co-parcenary exists. This being so, the basis of the claim is gone, inasmuch as it is founded on the consideration that the plaintiff is a person who, if the Zemindari were not impartible, would be entitled as of right to maintenance.' It was also pointed out: 'This proposition, it must be noted, does not negative the doctrine that there are members of the family entitled to maintenance in the case of an impartible Zemindari, just as the impartibility is the creature of custom, so custom may and does affirm a right to maintenance in certain members of the family. It is clear from this judgment that the Judicial Committee recognized that notwithstanding there was a full owner of all the properties for the time being, there was a family to which he belonged and to which future rights of succession have to be traced. It is true that a coparcenary in the sense that the members constituting it have an interest in the property, does not exist in the case of an impartible Zemindari. It is equally true that the Zemindari is not the joint property of all the members of the family. But nonetheless the Zemindari is joint family property in the sense that succession to it must be traced from the members constitut-ing the family. There is an essential difference between co-parcenary or joint property and joint family property. A co- parcener has the right either to joint enjoyment or to partition. A member of a joint family has not that right necessarily. In the case of an impartible property, it is joint family property controlled by a custom which gives the enjoyment for the time being to a single heir by primogeniture, In the judgment pronounced by discount Haldane in Sri Madana Mohana Ananga Bheema Deo v. Sri Purushothama Ananga Bheema Deo 46 Ind. Cas. 81 23 C.W.N. 177 these sentences occur: 'The suit is concerned with an impartible Zemindari in the District of Ganjam called Chinnakimidi or Pratapgiri. In 1865 the holder of the Zemindari was Raja Adikonda Deo who was a member of a joint Hindu family subject to the Mitakshara Law.' However that may be, this theory of making the adoption to the last male holder, as suggested by the Advocate-General, is opposed to what the Judicial Committee have said in Sri Madana Mohana Ananga Bheema Deo v. Sri Purushothama Ananga Bheema Deo 46 Ind. Cas. 81: 24 M.L.T. 231 and in very many other oases. Even if this theory of the last male holder is accepted, the parson to whom adoption should be made is Brojo Kishore and not Parushotham Deo. Brojo Kishore was the full owner of the property. On his death and pending the coming into existence of a preferable heir, Boishnava Deo succeeded. From Boishnava Deo the estate went to Purushotham. The estate taken by Boishnava and Purushotham was a defeasible estate. The fact that succession in the case of Boishnava, was from son to grandson is not a reason for holding that he did not take a defeasible estate. Supposing instead of an estate which is to be put an end to on the happening of an event, a period has been fixed for the termination of the estate: supposing it was a lease for 99 years which Boishnava had taken succession to that estate would go to his son and grandson and so on until the period expires. Afterwards the lessor or his hair would re-enter. Similarly until the contingency happens which acts as defeasance of the temporary estate, succession has to be traced to the line of the first intermediate owner. The learned Advocate-General contended that in the hands of Boishnava the estate was defeasible, but that in the hands of Purushotham it became indefeasible, and that in order that there may be defeasance of the estate the adaptation should have been made before the property descended from Boishnava to Purushotham. I fail to see on what principle this rule is to be worked. Certainly there is no text of Hindu Law which changes the character of the estate the moment it passes from the first possessor to his heirs, and no principle of convenience can be appealed to for sanctioning such an extraordinary rule. On the other hand, the decision of the Judicial Committee to which Mr. K.Srinivasa Aiyangar drew our attention shows distinctly that the theory when once a collateral takes a defeasible estate it becomes indefeasible in the hands of his successor is not sound. Bachoo Hurkisondas v. Mankorebai 9 Bom. L.R. 646 : 2 M.L.T. 295, which was an appeal from Bachoo Harkison-das v. Mankorebai 6 Bom.L.R. 268, supports this view. In Bachoo Harkisondas v. Mankorebai 6 Bom.L.R. 268 Sir Lawrence Jenkins, after reviewing all the authorities and particularly the first Chinnakimidi case reported as Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo 3 I.A. 154 said: 'In Raghunada's case 3 I.A. 154 the family was undivided: prior to the adoption there was only one surviving member of the family and in that member the whole property had vested; those conditions exist here. The only difference is that there the adopted son claimed against one who came in by descent, here against one who has come in by survivorship. But is this a difference of such moment as to deprive the widow here of the power of adoption, which in that case was held to be vested in her. Though in Raghunada's case 3 I.A. 154 the successor came in by descent not by survivorship, still he had to be found within the limits of the joint family.... Therefore the fact that only one member, of the joint family survived at the time of the adoption was not regarded there, and need not be treated here, as an obstacle in the way of an adoption within the joint family.' This pronouncement establishes the fact that there has been a descent would not put an end to the power- of adoption given by the man who held an inde feasible estate. This judgment was confirmed by the Judicial Committee in Bachoo Hurkisondas v. Mankorebai 9 Bom. L.R. 646. We find this passage in the judgment: 'The next point raised was as to the effect of the adoption on the title to the joint property. It was contended that, at the time when the adoption took place, the family estate had become vested absolutely and exclusively in the infant Bachoo and that the adoption could not detract from the right so vested. Their Lordships are, however, of opinion, as were the Courts in India, that the case of Sri Virada Pratapa Baghunada Deo v. Sri Brozo Kishoro Patta Deo 3 I.A. 154 governs this case and excludes the appellant's contention.' In the case decided in Sri Madana Mohana Ananga Bheema Deo v. Sri Purushothama Ananga Bheema Deo 46 Ind. Cas. 81 : (1918) M.W.N. 621 : 24 M.L.T. 231: 20 Bom. L.R. 1041 the Judicial Committee in dear terms indicate that the adoption if made to Brojo Kishore would be effective. In page 160 Page of 45 I. A.--Ed. it is stated: 'The Hindu Law no doubt recognizes the validity of an authority given to a Hindu widow by her deceased husband to make a second adoption or even a third or fourth adoption on failure of the previous adoption to attain the object for which the power is given, namely,, the perpetuation of the deceased's line, to discharge the obligations that rest on a pious Hindu.'' About the conclusion of the judgment their Lordships say: The authority to adopt conferred on Adikohda's widow was brought to an end when Brojo Kishore, the son she originally adopted, died after attaining full legal capacity to continue the line either by the birth of a natural born son or by the adoption to him of a son by his own widow.' And the very last line of the judgment says: 'But Raghunatha's succession was of a character only provisional and subject to defeasance by the emergence of a male heir to Adikonda.' I have only to add the words 'or to Adikonda's adopted son Brojo Kishore' and this sentence would exactly cover the present case. Moreover their Lordships have laid down that the true principle has to be found in Ramkrishna Ramchandra v. Shamrao Yeshwant 4 Bom. L.R. 315. The principle therein enunciated is: Where a Hindu dies leaving a widow and a son, and that son himself dies leaving a natural born or adopted son, or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived.' These words apply exactly to the present case and when we bear in mind that the estates taken by Raghunatha and Boishnava and Purushotham were in the language of the Judicial Committee subject to defeasance by the emergence of a male heir to Adikonda, it is clear that the adoption made to Brojo Kishore is perfectly valid.
32. In the result, I agree with the learned Chief Justice that the appeal should be dismissed with costs.