KRISHNAMURTHY AIYAR Vs. KRISHNAMURTHY AIYAR

JUDGEMENT

(1.) The plaintiffs are legatees under the will of one Ramakrishna Aiyar who died on 2nd April,, 1911. The suit is brought to recover possession of properties bequeathed to the plaintiffs under the said will. The deceased owned about 135 acres of land, of which he bequeathed 17 acres 90 cents to be taken by the plaintiffs who were his wife's relations, immediately on his death. They were also to get 19 acres 30 cents upon the death of his widow. Sivagami Ammal to whom the will allotted 45 acres 65 cents. On the same date (23 March, 1910) that the will waa executed, Ramakrishna Aiyar adopted the 3 defendant and under the will he bequeathed 26 acres 3 cents to the adopted son. He also gave 12 acres and odd to charity, and 9 acres 33 cents to his two nieces, 6 acres 34 cents to his nephew and grand-nephew and 37 acres to a gnati named Sami Aiyar. Out of the 45 acres given to his wife, the adopted son was to get 26 acres 35 cents upon the widow's death. After the bequest in favour of the plaintiffs had become vested in them upon Ramakrishna Aiyar's death, their father sold the properties bequeathed to them under the will, to the 1 defendant, who, in turn, sold them to the 2nd defendant, who is alleged to be the benamidar of the adopted son, the 3 defendant. The plaintiffs obtained a decree in the lower Court for possession of the property sued for with mesne profits and costs. The adopted son (the 3rd defendant) now appeals. The 2nd defendant has also appealed against the order directing payment of costs by him.

(2.) The will (Exhibit A) was presented for registration on the 25 March, 1910. At the same time a document (Exhibit B) was executed by the natural father of the 3 defendant agreeing to the alienations by will being made by the adoptive father. This document was not registered till the 9 April and the defence to the suit is that it was ante dated. The lower Court has decided against the theory of the agreement being ante-dated. The learned Subordinate Judge states that he is certainly of opinion that the will was carefully thought out before the adoption and was executed before the adoption actually took place, that Natesa Aiyar, the father of the adopted son, was fully informed of the intentions of the testator and had given his free and voluntary consent to such dispositions and that the consent document was executed and completed before the adoption actually took place. The law on the subject of an adoptive father making a will disposing of his property has been clearly established in Lakshmi V/s. Subramania (1889) 12 Mad. 490. Shephard, J., observes that if an adoption and a disposition of his property by the adoptive father form part of one transaction, the adopted son never acquires any Interest in the property disposed of and no question can arise as to his guardian's competency to deal with it. In that case it appeared that the defendant's natural father, when he gave his son in adoption, tacitly submitted to the arrangement contained in a will settling certain property on the testator's wife. This decision has been followed and approved by the Full Bench in Vinayakrav Ammal V/s. Sivaramien (1904) 27 Mad. 577, a case of an adoption by a widow in pursuance of her husband's authority, the natural father agreeing prior to the adoption to a disposition of half the property for the widow to enjoy during her life. It is clear that from the moment that an adoption takes place, the natural father of the adopted boy loses his authority on behalf of the boy to give his consent to any disposition of property and at the same moment the adopted son becomes a co- parcener in the family of his adoptive father and thereupon the latter has no power to dispose of ancestral property at his own sweet will and pleasure, but can only make alienations for necessary purposes. In Visalakshi Ammal V/s. Sivaramien (1904) 27 Mad. 577 it is assumed that the natural father would not have agreed to an adoption coupled with a disposition of property unless it was for the benefit of his son and it is further assumed that the adoptive father would not have taken the son in adoption except on the condition agreed to. In such circumstances, Benson, J. observed, the adoption cannot be set aside and the condition with which the adoption was coupled could not be set aside except on strong grounds of legal necessity or public policy. The references in this judgment of Benson, J., to the test of fairness and reasonableness of the dispositions were not really necessary for the disposal of that case. They were based on the remarks in favour of Farren, J. in Ravji Vinayakrav Jaganath V/s. Lakshmi Bai (1887) 11 Bom. 381 who was considering in the light of Mayne's Hindu Law the powers of a guardian to bind his wards by giving his consent to acts done on his behalf during his minority. There is a point of difference between that case and the present, which is that the adoption there was made by a widow in pursuance of an authority from her deceased husband but here the adoption is made by a full owner. The test of reasonableness has been imported into the case dealt with in Balkrishna Motiram V/s. Shri Uttar Narayan Dev (1918) 43 Bom. 542, although in that case a document was executed by the natural father of the adopted boy agreeing to a grant in favour of certain charities and the adoptive father was alive at the time of adoption. The learned Judges were of opinion that the authority of Lakshmi v. Subramania (1889) 12 Mad. 490 had been weakened by the subsequent decisions in Jagannadha V/s. Papamrna (1892) 16 Mad. 400 and Bhaiya Babidat Singh v. Indar Kunwar (1888) 16 Cal. 556 which were cases of adoption by widows whose power of alienation was inferior to that of their deceased husbands. With due respect, I consider that if the father of the boy consented to the adoptive father endowing certain charities and gave his consent at or before the time of adoption to such dispositions, a presumption would arise that the grant was valid.

(3.) The 3 defendant in the present suit having set up the case that the consent was given after the adoption, the onus lay on him to prove that Exhibit B was antedated. See Mina Kurnari Bibi V/s. Bijoy Singh Dhudhuria A.I.R. 1916 P.C. 238. The circumstances that the two documents, the will and the consent agreement, were not registered at the same time is explainable by the fact that the Registrar came to the village to register Ramakrishna Aiyar's will because the was ill. The adoption agreement could not be registered in the village under Section 31 of the Registration Act as it was a executed by Natesa Aiyar who was capable of attending at the Registration Office. The Easter holidays intervened from the 24th to 28 March and the document was therefore registered later, but the stamp was bought on the same date as the will was dated as is proved by the stamp-vendor's endorsement. I see no reason to differ from the lower Court which has found that the execution of the will and the adoption deed were parts of the same in transaction and that the documents were amore or less simultaneous.