1. This is an appeal against the decree and judgment of the Court of the Subordinate Judge, Tinnevelly, in a suit filed by the first respondent for a declaration that the second defendant is not the adopted son of the first defendant and the alleged adoption is neither true in fact nor valid in law. For convenience of reference the following genealogy may usefully be read:
__________________________|___________________________________ | |
| | | Venkataswami Alagiriswami Rangaswami | |
| __________________________________ V. Krishnaswami | | | | | | Krishnaswami Rajgopal=subbalakshmi Pichayya | (Defendant 6) (Plaintiff adopted son | | | | | | | Muthukrishna=Dhanalakshmi P. Krishnaswami | (Defendant 1) | |
_________________________|______________________ (Daughter by first wife, D efendant 3)
| | |
| | |
alagiriswami Pichyya (Plaintiff) (Defendant 2 Muthuswami (Defendant 4) adopted son of Muthukrishna) (Defendant 6)
2. Muthukrishna Naidu died on 22-6-1941. The first defendant is his widow. Danalakslimi Ammal. He died possessed of the plaint schedule properties. He is alleged to have executed a document styled will dated 21-6-1941. Pursuant to the power to adopt conferred on her under the said document the first defendant took the second defendant in adoption. The second defendant is the sister's son of the first defendant. The plaintiff's case is that the document dated 21-6-1941 was not executed by Muthukrishna Naidu in a sound disposing state of mind and that even if he did, the said document conferred only a bare power to adopt on the first defendant, and not having been registered, invalid and inadmissible in evidence. He also denied that the adoption, in fact, had taken place. The third defendant is the daughter of Muthukrishna Naidu by his first wife. Defendants 4 and 5 are Muthukrishna Naidu's paternal uncle's sons. Plaintiff is a brother of defendants 4 and 5 but taken in adoption by Muthukrishna's father's father's brother's son. The sixth defendant is Muthukrishna's mother. Defendants 1, 2, 3 and 6 denied the allegations in the plaint and contended that the document dated 21-6-1941 was a Will and that the adoption was true in fact and valid in law. The 5th defendant was 'ex parte;' the 4th defendant appeared in person and stated that he had no contest. On the pleadings the following issues were framed:
1. Whether the plaint has not been properly valued and proper court-fee paid?
2. Whether the suit is barred by res judicata?
3. Whether defendants 3 and 4 have colluded with the other defendants?
4. Whether the suit as brought is maintainable?
5. Whether the Will set up by the defendants is true and valid?
5-a. Whether the will merely amounts to a power to adopt and so invalid for want of registration?
6. Whether the adoption is not valid.
7. Whether the family members consented to the adoption?
8. Whether, the preferential claim of the plaintiff to the village Munsifs office is correct?
9. To what relief, if any, is the plaintiff entitled?
The learned Subordinate Judge held that the document, dated 21-6-1941 was executed by Muthukrishna in a sound disposing state of mind and that the adoption was true. But he held that the document was not a Will but one conferring a power to adopt and, therefore, was invalid for want of registration. He further held that the consent of the next reversioners on the basis of the alleged power would not validate the adoption as the conferment of the power itself was held to be invalid. In the result he decreed the suit. Defendants 1, 2, 3 and 6 prefer the above appeal.
3. The factum of adoption was not disputed before us. The learned counsel for the appellants argued that the learned Subordinate Judge was wrong in holding that the aforesaid document was not a will. The learned counsel for the respondent, while supporting the construction of the Subordinate Judge put upon the said document, contended that the finding of the learned Subordinate Judge that the document was executed by Muthukrishna in a sound disposing state of mind was wrong. The other findings of the learned Subordinate Judge were accepted by the parties.
We shall first take the question whether the document dated 21-6-1941 was executed by Muthukrishna in a sound disposing state of mind.
(After discussing the evidence in the case His Lordship proceeded). We therefore accept the finding of the court below that Muthukrishna executed Ex. B. 2 in a sound disposing state of mind.
4. Learned counsel for the appellant then contended that the construction put upon Ex. B. 2 by the learned Judge was not correct. He argued that on a fair reading of the document, it would be clear that it is a document of a testamentary character. Before we consider the contents of this document, it may be convenient at this stage to refer to the cases cited on either side to discover if possible rules of construction which may afford guidance for us to construe this document. In -- 'Mst. Bhoobun Moyee v. Ramkishore', 10 Moo Ind App 379 (A), the question was whether a deed of permission to adopt given by one Kishore Acharj Chowdry to his wife Chandrabullee Debia was valid and whether the adoption made pursuant to that permission was true. That question depended upon a construction of a document dated 9-11-1819. The relevant portion of the document reads:
"Subsequently, by the Will of God, you have given birth to a male child, still, having regard to the future, I have again given you permission. If, which God forbid, the male child of your body be non-existent, then you will adopt a son from my race (Gotra) Or from a different race (gotra) for the purpose of performing mine and your 'Shradh and other rites, and for the sheba (service) of the Gods and for the succession to the Zamindary and other property; on which, if the adopted son be non-existent, which God forbid, then you shall, according to your pleasure, on the failure of one, adopt other sons in succession, to avoid the extinction of the 'pinda' (funeral cake or offering); that 'dattaka' (adopted) son shall be entitled to perform your and my 'shradh' etc., and that of our ancestors, and also to succeed to the property."
In construing the document the Judicial Committee observed at page 309: "The instrument before us is merely what it purports to be, a deed of permission to adopt; it is not of a testamentary character, it was registered as a deed in the lifetime of the maker; it contains no words of devise, nor was it the intention of the maker that it should contain any disposition of his estate, except so far as such disposition might result from the adoption of a son under it. He mentions the objects which induced him to make the deed -- religious motives, the perpetuation of his family, and the succession to his property; but it was by the adoption, and only by the adoption, that those objects were to be secured, and only to the extent in which the adoption could secure them." The document construed by their Lordships obviously contained no testamentary disposition. There were no words of devise. A bare power of adoption was conferred on the widow and the object of the adoption was mentioned, namely, to succeed to the property.
5. In -- 'Bireshwar Mookerji v. Ardhachander Roy', 19 Ind App 101 (PC) (B), the question was whether a bequest was to the boy to be adopted as a 'persona grata' or whether it depended upon whether the adoption was a condition precedent for the bequest taking effect. The testator mentioned in the will that the legatee was attached to him and his wife, and that he had a mind to give a portion of the property to his daughters and the balance to him, that he had taken the boy in adoption and that therefore he was bequeathing the properties to him, the Judicial Committee thought that he did not select the boy as an adopted son but for reasons independent of adoption, though they were likely to lead to it. On the construction of that will the Judicial Committee held that the boy took the bequest even though the adoption was held to be invalid. This decision, in our view, is not really relevant to the question raised before us. In -- 'Somasundara Mudali v. Duraiswami Mudali', 27 Mad 30 (C), Benson and Bashyam Aiyangar JJ. had to construe a document conferring an authority to adopt. The document in Question was described as a will executed by Somasundara Mudali. Under the document he gave Vanji Anni, his wife, a power to adopt. The material part of the document reads: "I have given you authority to adopt Somasundaram, second son of Vaiyapuri Mudaliar Avergal .....I have further hereby given you authority to put into his possession all the properties which I got under the decree in suit No. 50 of 1899 on the file of the Subordinate Judge's Court of Kumbakonam. If you are not willing to adopt the said somasundaram, you shall adopt anybody you please and put the properties into his possession."
The learned Judges held that the later clause directing her to put the adopted son in possession of the properties was a statement of the consequences that should follow on the adoption. In that view they held that the authority to adopt being in writing and not contained in a Will and not being registered, it was inoperative to confer such authority under Sections 17 and 49, Registration Act. It may be noticed that in this case there are no specific words of devise. In -- 'Jagannatha Bheema Deo v. Kunja Behari Deo', AIR 1922 P. C. 162(2)(D), the Judicial Committee had another occasion to construe a document to ascertain whether it contained a testamentary disposition or whether it only conferred a power to adopt. There the document was described as a Will. The operative contents of the document were found in the following passage:
"I have consented to your adopting a son at your pleasure and conducting the management of the estate in the best manner. None of my heirs shall have cause to raise disputes touching this matter. This will has been executed with my consent."
Viscount Haldane made the following observations in construing the document at page 163: "That standing by itself appears to their Lordships to be no more than a present authority to the wife to make an adoption, and there is nothing else of substance in the document. It may be that the writer was in a position under the law applicable to give her such power, but whether he was or was not, he purports to give her nothing else; for the references to property that occur in it are no more than consequences of the guardianship of the wife, and the character of being a Will is not established independently of these." (6) The document in this case also does not contain any words of devise. Strong reliance was placed by the learned counsel for the respondent on the judgment of the Privy Council in -- 'Shyam Pratap Singh v. Collector of Ettawah', AIR 1846 A. C. 103 (E), The document in that case was in the following terms:
"To-day (Kumar Madho Singh) has given him (Maha Vindeshri Pratap Singh) to me in adoption and I have taken him in adoption. After my death, my adopted son, Lal Maha Vindeshri Pratap Singh, shall be the 'gaddinashin' and the owner of my entire moveable and immoveable property. After my death, he shall like myself, have all the powers. Lal Maha Vindeshri Pratap Singh is yet a minor, therefore during his minority, my mother Rani Beshni Madho Kumar, who was my guardian daring my minority, and who managed the entire estate very well, shall remain the guardian of my adopted son Lal Maha Vindeshri Pratap Singh and shall manage the entire estate. I have therefore executed this will while in a sound state of body and mind and after full deliberation."
The question was whether the said document was a Will within the meaning of the Indian succession Act. It was contended that the words "after my death my adopted son Lal Maha Vindeshri Pratap Singh, shall be the gaddinashin .....and
the owner of my entire moveable and immoveable property" was a testamentary disposition. In dealing with that contention, Sir John Beaumont made the following remarks at page 106: "Their Lordships do not doubt that these words, taken out of their context, would operate as an effective gift of the whole o he testator's property, but taking the document as a whole their Lordships prefer the view of the Subordinate Judge. It will be observed that there are no direct words of gift in the Will, and that there was no object in giving to the adopted son property which he would inherit under the law whilst the words imputing that he would take the whole estate are as consistent with mere narrative as with gift."
It is said by making these observations the Judicial Committee held that even though there are definite words of devise in a document, if they are unnecessary and if the adopted son would take the estate even if these words were not found in the document, the Court should hold that such a document is not a will. We do not think that the Judicial Committee intended to lay down any such sweeping proposition. In the case before them, though the words used in the document in a different context could be interpreted as words of devise, they were consistent with mere narrative as with gift. Therefore they held that in the contest the words were not words of devise hut were only an expression of the consequences that would follow on adoption. The adopted son would be owner of his entire properties. But we do not understand those observations to mean that even if there are specific words of devise, a Court should ignore them and construe them as only a narrative. To illustrate, suppose a testator says in clear terms that he bequeathed his entire properties to the adopted son, we think it is not permissible as a rule of construction to hold that the document is not a will but only a statement of fact where the terms of a will are ambiguous and where the alleged words of devise are consistent With a testamentary disposition and also with a narrative, it is open to a Court on a reading of the entire document to hold that in the context the words are not words of disposition but only form part of a narrative. It is not necessary to multiply cases. Nor is it necessary to consider the cases cited by learned counsel for the appellants laying down general rules of construction of Wills.
7. The document is a Will if it contains specific words of bequest to come into effect after the death of the testator. If there are specific words of devise it is not permissible to ignore them. The validity of a Will in all its clauses is not a relevant consideration in ascertaining whether a document contains a testamentary disposition or is only a conferment of an authority to adopt. To illustrate a minor may execute a will though the Will is invalid. See --'K. Visiyarathnam v. Sudarsana Rao', AIR 1920 Mad 237 (P). A testament may dispose of inalienable property or a property in regard to which the testator had no title. The document would be a will but the disposal clause would not operate on the properties conveyed. So too when a member of a joint family makes a bequest of joint family property, the document would be a will but it could not confer any title on the legatee as the testator had no power to dispose of joint family properties. If under a document a power to adopt is conferred on the widow but it does not contain any words of devise, it is obvious it is not a will. It may be in some cases that the alleged words of devise are ambiguous and are consistent with a narrative and a declaration of the consequences of adoption. In such cases, having regard to the contest, a Court may hold that the document only conferred a power or authority to the widow and the ambiguous words of devise are only a statement of the legal consequences of an adoption. But where there arc clear words of devise, it is not permissible for a Court to ignore them and hold that the document is not a will on the ground that the will was invalid or for the reason that even if the will had not been executed the same legal consequences would flow. For the purpose of construction of a document, the validity of the will or its clauses must be ignored.
8. Bearing the aforesaid principles in view we shall now proceed to construe Ex. B. 2. As much of the arguments turned upon the recitals in the document. It would be convenient to read the material part of the document: "I am aged about 45 years. I am the hereditary village munsif of this village. While I had married three wives, the first two wives died. The third wife alone namely Dhanalakshmi Animal is alive. I did not beget any son by any of my three wives. I have got only one daughter by my first wife. On account of the sickness wherein I am now suffering from and doubt as to whether I would survive, it is necessary for me to take a suitable boy in adoption in order that my soul may attain spiritual salvation and in order that (he shall) succeed to my properties and also to the office of the hereditary village munsif in my place. 1 am bringing up Ramdas the son of my brother-in-law the late T.S. Tirumal Rao Naidu & Lakshmi Ammal residing at Vasudevanallur, who are my relatives, as an 'abimanaputra' (foster son) from his childhood. I have a desire to take him in adoption. If in case it is not possible for me to take the said boy in adoption during my lifetime, I have in order that my third wife Dhanalakshmi Ammal shall take Ramdas in adoption for me given authority under this Will to my (third) wife the aforesaid Dhanalakshmi Ammal. The adopted son, namely, Ramdas who is so taken in adoption to me by my third wife the aforesaid Dhanalakshmi Ammal shall like unto as my 'aurasa' son take my properties and the hereditary office of the village munsif and enjoy them. But as the said boy who is proposed to be adopted is a minor, my third wife Dhanalakshmi Ammal shall be his guardian and be in management till the minor attains majority." It will be seen from the aforesaid document that Muthukrishna was very anxious to take a suitable boy in adoption for spiritual reasons and also for succeeding to his properties. He was also bringing up Ramdas from his childhood as his foster son. He intended to take that boy in adoption before his death. If he did not, he gave power to his wife to take him in adoption. Then comes the following crucial recital. "The adopted son namely Ramdas who is so taken in adoption to me by my third wife the aforesaid Dhanalakshmi Ammal shall like unto as my 'aurasa' son take my properties and the hereditary office of the village munsif and enjoy them."
He appointed his wife to be the guardian and to be in management till he attained majority. He directed that the document should come into force after his lifetime.
9. The document is styled a Win. It contains the posthumous directions of the executant. It is intended as well as expressed to come into effect after his death. The words "take and enjoy" are clear words of devise. It deliberately breaks the line of succession. If the Will was not executed, the widow would take a limited interest in the whole property. If he had taken a boy in adoption during his lifetime, or even if the widow had done it after his death, she would inherit her husband's interest in joint family property under the Hindu Women's Rights to Property Act. But under the document the executant directs
Ramdas the second defendant to take the entire property to the exclusion of the widow. This is not a narrative of events that would happen in law but a conscious diversion from the natural course of succession. What is more, the bequest is to Ramdas to be taken in adoption by his wife, not to his adopted son. Suppose for one reason or other the adoption has been postponed after the death of the executant, nonetheless the boy to be adopted takes the property under the document for no alternative bequest during the interragnum is provided for. We need not express our opinion on the question whether the interest so taken would be divested if his adoption had not taken place. The validity of the will for the reason that the properties bequeathed are joint family properties is not of much relevance in this context as we are concerned to ascertain the testamentary character of the document not its validity. If the testamentary character is established we hold it has been established in this case -- the document though not registered is admissible in evidence and the power to adopt incorporated therein can be relied upon to sustain the adoption in this case. We cannot, therefore, agree with the Court below that Ex. B. 2 is invalid for want of registration. We hold that the adoption made pursuant to the power contained in the document is valid.
10. It follows that the decree of the lower Court is liable to be set aside and we accordingly do so. The appeal is allowed with costs here and in the Court below.