1. This appeal arises out of a suit by a reversioner for declaring that the alleged adoption of the defendant 2 is not true and valid and that his alienations are not binding on him beyond the lifetime of defendant 1. The last male owner Krishna Rao died on 20th April 1913. Defendant 1 is his widow. Before Krishna Rao's death he executed Ex 1 (dated 16th December 1912) described in the Court below as an affiliation deed. The Subordinate Judge held that Ex. 1 operates as an affiliation deed and dismissed the suit. The plaintiff appeals.
2. If the defendant 2 had not been validly adopted, he can succeed only on the footing that Ex. 1 was a gift or settlement or a will. The Subordinate Judge says:
A Hindu can affiliate a son instead of actually adopting him, and give him his properties. It is no doubt true that unlike an adoption, mere affiliation will not create a right in the person affiliated to the properties of the person who affiliates. But in Ex. 1 we see words distinctly indicating the transfer of Krishna's properties to defendant 2.
3. We have, therefore, to see if it purports to be a transfer of the property inter vivos (by way of gift or settlement). The last sentence of the document (which is in Telugu) if properly translated runs thus:
Further you, becoming a son to me, will be such an owner of all my properties as a son is.
4. This certainly cannot amount to a gift or transfer of all Krishna Rao's proper-ties. At best, it contemplates that defendant 2 should be associated with him as a joint owner on the footing that both are members of a joint family. In the absence of an adoption, they cannot be members of a joint family, but may become tenants-in-common, i.e., the document might be a gift of an undivided half of the properties of Krishna Rao if there are appropriate words indicating gift. It is clearly not a will of the whole or half of his properties. There is no reference of any kind to Krishna Rao's death. In this respect, this case is a stronger case than that in Tirugnanampal v. Ponnammai Nadathi  12 M.L.W. 660, where the document was styled a will, and referred to the executant's death. These circumstances are absent in this document which was also stamped with a ten rupees stamp. It was not stamped as a gift-deed. It was registered in Book IV and not in Book I. There are no words of gift or transfer in it. The executant was merely stating the legal consequences of adoption and what the rights of the defendant 2 as adopted son, as he believed him to be. were. The document is merely an adoption deed. This is the view of the Subordinate Judge. In this view, viz., that it is neither a will nor a document, transferring the property, it seems to me to be unnecessary to discuss the cases relied on by the respondent. They are cases of wills which operate to transfer the properties of the testator after his death the only point discussed being whether the legatee takes as a persona designata, or whether he should fill the character of an adopted or aurasa son as a condition precedent to his taking as legatee: See Nidhomoni Debya v. Saroda Pershad Mookerjee  3 I.A. 253; Subbarayar v. Subbammal  24 Mad. 214; Ramakrishna Rao v. Courts of Wards  22 Mad. 383, Khub Singh v. Ramji Lal  41 All. 666 (case of gift and will), Dhondubai v. Laxman Rao A.I.R. 1922 Bom. 352. We have, in this case, neither a will nor a transfer inter vivos. In this view, it is unnecessary to discuss the cases relating to the validity or effect of a document where it is wrongly registered in one Book instead of another. In this case, there is no such question. It was an adoption deed and it was correctly registered in Book IV. I do not mean to say that registration throws light either on the intention of Krishna Rao, or on the construction of the document.
5. It follows that Ex. 1 cannot help defendant 2. The only other ground on which defendant 2 can succeed is that he was adopted. This was the subject of issue 4. The Subordinate Judge states that no evidence was adduced by the defendants on this issue. Para. 5 of defendant 2's written statement seems to disclose a suspicious consciousness that the adoption is not valid for some reason not disclosed. Lest the Sub' ordinate Judge by a too favourable view on issue 6 induced the defendants not to call their witnesses on issue 4, we have given an opportunity to defendant 2 to state on affidavits what happened at the trial but, after taking time, he found himself unable to use the opportunity so given. The result is we are unable to help defendant 2 by allowing a further inquiry on issue 4.
6. The result is that the plaintiff must have the declaration he seeks as to defendant 2's adoption or right to properties. Before the case can be finally disposed of, we have to call for findings on issues 7 and 8, which have not been disposed of. Time two months and one week for objections. Fresh evidence may be taken.
7. [In compliance with the order contained in the above judgment the Subordinate Judge of Masulipatam submitted the following.]
(1) Whether the plaint mentioned alienations are valid and binding on plaintiff.* * * * * * * * * * No counter evidence has been adduced on behalf of plaintiff to show that the debts were not real or were not binding on the estate of Krishna Rao. However, as the defendant 2 had no manner of right to the properties, his alienations cannot be upheld.
8th issue.--Whether the alienees or any of them are entitled to get any compensation for the improvements alleged to have been made by them. The decisions quoted above also lay down that the alienees cannot claim the money paid by them for the alienations. Much less can they claim the value of the improvements effected by them. I find accordingly.
8. The Subordinate Judge has now returned findings on issues 7 and &. On the 7th issue he finds that the alienations now in question, namely, the sale under Ex. 13 dated 26th April 1914, the sale under Ex. 4 dated 8th September 1914, and the mortgage under Ex. 12 dated 26th April 1916, are not valid and cannot bind the reversionary interest of the plaintiff. He found that they were all effected to discharge the debts contracted by the late Krishna Rao, but as they were effected by defendant 2 who has been found by us not to be the adopted son of Krishna Rao, and, therefore, not entitled to the properties of the late Krishna Rao he held that the alienations are not binding on the plaintiff or other reversioners. On the 8th issue he found that they are not entitled to any improvements effected by them. The only point raised in appeal by the learned vakil for the alienees is that though the alienations as alienations may not be binding on the plaintiff, still as the consideration was utilized for the purpose of discharging the debts of the late Krishna Rao the alienees are not entitled to the return of the purchase-money on equitable grounds. Assuming that the defendants are entitled in equity to a return of the money paid by the alienees and utilized for the discharge of Krishna Rao's debts, there are in this case great difficulties in the way of the application of any equitable doctrine in favour of the defendant's alienees. In the first place, the question arises, when are they entitled to the return of the purchase-money. If this suit is a suit for the recovery of the lands themselves one can understand that the refund of the amount paid by the defendants-alienees and utilized for the discharge of Krishna Rao's debts should be made a condition precedent before the plaintiff can get a decree for the suit lands. But the suit is not for the recovery of possession. It is a suit merely for a declaration that the alienations are not binding on the plaintiff, after the death of Krishna Rao's Widow, defendant 1. Neither the plaintiff nor defendant 1 nor defendant 2 seeks to question the operation of the alienations during the lifetime of defendant 1. There is nothing to prevent the two sales under Exs. 13 and 4 from being given effect to during the lifetime of defendant and there is nothing to prevent vendee under these sale-deeds from enjoying the properties sold until' defendant 1's death; and if the vendees choose to continue in possession until defendant l's death it cannot be said that there is a total failure of consideration for these sale-deeds. Any question of partial failure of consideration will arise only after the death of defendant 1. It may be that so far as any debts of Krishna Rao that were paid off by means of the amounts obtained by the sales under Ex. 13 and 4 are mortgage debts, one might take the view that the alienees under Ex. 13 and 4 are subrogated to the rights of the mortgagees so paid off. For instance in the case of Ex. 13 out of the several debts of Krishna Rao for the payment of which the sale was effected the following namely, (1) the debt payable to Gajjala Sri Rama Murthi Garu of Musulipatam and (2) the debt payable to Bhagavathula Achamma Garu, another resident of Musulipatam, seem to be mortgage debts; and. it is possible to hold that the vendee under Ex. 13 is subrogated to the rights of the mortgagees; assuming that the produce of the land he enjoys up to the death of defendant 1 may be set off towards the interest due on the bonds he may be entitled to a refund of the principal amount and interest from the death of defendant 1 before the reversioners can obtain possession. But where the debts are not charged debts the' alienees have no right by way of subrgoation to the amounts of such debts. Vide Ammani Ammal v. Ramaswami Naidu : (1919)37MLJ113 Nathu v. Balwantrao  27 Bom. 390 Tangya Fala v. Trimbak Daga  40 Bom. 616 and Limbaji Raviji v. Rahi A.I.R. 1925 Bom. 499.
9. It may be he is entitled to recover the amounts from defendant 1 but it is difficult to see how he is entitled to any charge. Similarly in the case of Ex. 4 one of the items of consideration is the payment of a mortgage debt dated 16th December 1912, in favour of Chinna Achutharama Raju and others and similar remarks may apply to the vendee under Ex. 4 in respect of that mortgage. But as to the mortgagee under Ex. 12 no prior mortgage debt was mentioned in Ex. 12. I do not see how the mortgagee is entitled to any rights by way of subrogation. It may be that there is another course open to the alienees under these three documents. Seeing that two of the documents are partially inoperative and the third perhaps wholly inoperative the alienees may sue defendant 2 for the return of the amounts paid by them as on a failure of consideration, and it may be they will get effective decree against defendant 2 or defendant 1 or both of them, in which case there can be no rights of subrogation to be worked out after the death of defendant 1. Seeing that the 1st defendant's sympathies are with defendant 2 and that she herself recognises that the debts were such as she would have been bound to pay off, it may be the alienees may be able to obtain fresh sale-deeds or mortgage-deeds from defendant 1 herself. We do not know what course the alienees may be advised to take and we do not know what they may succeed in obtaining from defendant 1 during her lifetime, and from defendant 2. Under these circumstances, it is impossible for us to attach any equitable conditions to the declaration granted to the plaintiff so as to provide for the situation that may arise hereafter on defendant 1's death. Any equities that may arise on the defendant's death and that may remain undecided prior to that point of time will have to be dealt with when the plaintiff attempts to obtain possession of the properties from the vendees after defendant 1's death. So far as the mortgagee is concerned, we are not able to see that any such equities will exist.
10. Under these circumstances, the finding of the Subordinate Judge must be accepted. The appeal will be allowed and there will be a decree in favour of the plaintiff declaring that the adoption of defendant 2 is not true and valid, that the alienations under Ex. 12, 13 and 14 are binding on the plaintiff and the question of any equities that may arise when the plaintiff seeks to obtain possession of the lands sold under Exs. 13 and 4 is left open. The plaintiff will have costs throughout.