SREE SREE SREE MADANA MOHANA ANANGA BHEEMA DEO KESARI GAJAPATI LATE AMINOR, BY SREE SREE SREE KUNDANA DEVI PUTTA MAHADEVI Vs. SREE SREE SREE PURUSHOTHAMA ANANGA BHEEMA DEO

JUDGEMENT

(1.) The material facts for the purposes of this appeal are set out in the judgment of my learned brother which I have had the advantage of reading. I need not repeat them. The questions for determination are-- (1) Was the second adoption within the powers conferred by the authority to adopt (Exhibit B) ? (2) If so, (a) was the adoption though not made to the last male holder effective for the purpose of divesting the estate an interest which, at the date of the adoption had become vested in the defendants ? (b) Was the fact that Adikonda s son s widow was alive when the adoption was made to Adikonda a bar to the exercise of the power?

(2.) As pointed out by their Lordships of the Privy Council in Suryanarayana v. Venkataramana (1906) I.L.R. 29 M. 382, S.C. 16 M.L.J. 276 " the main factor for consideration in these cases is the intention of the husband. I think the only safe rule is to try and ascertain the intention of the donor of the power from the terms in which the authority is given viewed in the light of such extrinsic evidence as would be admissible if the question for consideration were the construction of a will. In the present case for instance in my opinion evidence that the husband who gave the authority was at enmity with his brother and was anxious to exclude him from the succession would be admissible extrinsic evidence as evidence of an attendant circumstance. Evidence that the first adopted son lived for 36 years, and that events happened between the giving of the authority and the second adoption which if the testator could have foreseen them might have made it likely he would restrict the authority to one adoption, seems to me to be extrinsic evidence which is not admissible.

(3.) As regards the argumentatum ab inconvenienti on which the learned Judge lays considerable stress I think considerations of convenience have more relevance in connection with the second and third questions than with the question of construction. No doubt there are passages in some of the judgments in the cases to which the learned District Judge refers which lend support to his view that for the purposes of ascertaining the intention of the donor of the power subsequent events might be looked to. The learned Judge cites a passage from the judgment in Mussamat Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhry (1885) 10 M.I.A. 279. "It could hardly have been intended that after the lapse of several successive heirs, a son should be adopted to the great grandfather of the last taker." This was an observation with reference to the particular case before their Lordships. I do not think Their Lordships intended to lay down any general canon of construction.