SUBRAMANIA CHETTIAR Vs. SANKARA VELAYUDAM CHETTIAR

JUDGEMENT

(1.) The question in this appeal is whether a disposition by way of bequest by a Hindu of portions of the family property in favour of his deceased brother's widow for life with remainder absolutely to her daughter can be held to be ratified by his adopted son when it is found that this and other dispositions of family property were made in pursuance of an arrangement made by the adoptive father with the natural father of the boy whom he wished to adopt in consideration of the adoption and it is also found that the adopted son has ratified all the other dispositions forming part of the same arrangement and has not questioned the disposition in dispute for a period of more than twenty years after attaining majority.

(2.) The facts are fully stated in the judgments of the District Munsif and the learned Subordinate Judge. One Veerabahu died in 1889, having a short time before his death adopted the present respondent and at the time of the adoption having made, in pursuance of an arrangement with the respondent's natural father, certain dispositions by way of two wills, Exs. A and B, in respect of his family property. The substance of the arrangement was that he set apart certain properties for the maintenance of his two wives and his brother's widow for their lives, gave certain other property absolutely to his brother's daughter, and provided that the brother's daughter should take the property given for maintenance to the brother's widow after the laser's death. He also set apart certain property for charity and left the rest of the estate to the son who was to be adopted. The brother's daughter (appellant's mother) died in 1918. The suit was brought in 1921 by the appellants because the respondent, who had attained majority in 1899 and till then raised no dispute about the dispositions in the father's wills and had ratified and affirmed them so far as other dispositions are concerned, began to interfere with the appellant's possession of the property in dispute soon after the death of Veerabahu's brother's widow who had been in possession till her death in 1921. So far as is now material, the appellant-plaintiff urged that the respondent-defendant had accepted and affirmed the wills and attested a sale deed for property conveyed under the wills to the plaintiff's mother and grandmother and that the respondent is therefore estopped from questioning the dispositions in the wills. The respondent, after contending that the wills were invalid as against him as they related to ancestral property, contended that he had not accepted or affirmed those dispositions because he had attested the sale deed mentioned in the plaint without knowing its contents. The first and fourth issues raised two questions, the former as to the validity and binding character of the wills and the latter as to estoppel by the defendant's conduct. In dealing with these issues both the District Munsif and the Subordinate Judge dealt with the long period of thirty-two years which had elapsed since Veerabahu's death before the suit and the acts of the defendant-respondent which showed that at the time of the adoption of the respondent, Veerabahu and the respondent's natural father had agreed to the dispositions of the wills as a just provision for the two branches of the family and also that the wills were acted upon during this whole period and that the respondent himself had accepted and affirmed their validity by attesting a sale deed by the plaintiff and his mother and grandmother of the properties left to their branch to a stranger and by entering into an arrangement for managing the charities established by the wills with the other branch of the family. They therefore held that both by virtue of the agreement between the father and Veera- bahu at the time of the adoption and also by virtue of the defendant's conduct in ratifying the dispositions of the wills after Veerabahu's death the defendant- respondent is estopped from contesting the 1 plaintiff-appellant's rights. These judgments were pronounced in December, 1923 and January, 1925. The respondent filed a second appeal to this Court in September, 1925. Before the appeal came on for hearing before Anantakrishna Aiyar, J., in August, 1929, the decision of the Privy Council in Krishnamurthi Aiyar V/s. Krishnamurthi Aiyar (1927) L.R. 54 I.A. 248 : I.L.R. 50 M. 508 : 53 M.L.J. 57 (P.C.). was pronounced in. March, 1927, and was reported in the same year. In view of this decision which reversed the decision of this Court in Krishnamurthi Aiyar V/s. Krishnanmrthi Aiyar (1924) 49 M.L.J. 252. the learned Judge thought that the Lower Courts had failed to appreciate clearly the points for consideration and he therefore called for findings on three matters, (1) the exact nature of the arrangement entered into at the time of the adoption, (2) whether the defendant is in any way equitably estopped from claiming the properties, and (3) whether the defendant has in any way ratified the arrangement, if any, come to at the time of the adoption. Another learned Subordinate Judge returned findings on these issues. As to the arrangement he found that Veerabahu and the respondent's natural father at the time of the adoption of the respondent entered into an arrangement whereby the natural father consented to the bequests under the two wills and agreed to the respondent taking the properties undisposed of by them. On the question of ratification he found that the above described arrangement as well as the bequests made by the wills were accepted by the respondent as valid. He went on to say that it was not a case of ratification in the strict sense as the bequests evidenced by the wills were not made on behalf of the respondent, but he added that nevertheless the defendant can (must) be held to have ratified his natural father's consent to abide by the bequests made in the two wills. On the question of estoppel he held that there was no estoppel in the proper sense because the respondent had made no representation on which the appellant or his predecessors-in-title had acted to their prejudice. After recording these findings which was all that he was required to do, the Subordinate Judge went on to consider the validity of the wills in view of the recent decision of the Privy Council, and in the end opined that the two wills are valid only to the extent of the bequests made in favour of Veerabahu's wife and the brother's widow. This was an opinion on a question of law and was as such not binding on the learned Judge in second appeal.

(3.) The learned Judge in second appeal held that according to the decision in Krishnamnrthi Aiyar V/s. Krishnamurthi Aiyar (1927) L.R. 54 I.A. 248 : I.L.R. 50 M. 508 : 53 M.L.J. 57 (P.C). the dispositions of the two wills, although they were assented to by the respondent's natural father, were not binding on the respondent so far as they went beyond the provisions for his own wives and his brother's widow who was entitled to maintenance. In short the wills were invalid to the extent of the dispositions therein contained in favour of Veerabahu's brother's daughter, the appellant's mother. To this extent we agree with the learned Judge.