KALYANASUNDARAM PILLAI Vs. KARUPPA MOOPPANAR

JUDGEMENT

(1.) These are two consolidated appeals from a judgment and two decrees dated November 13, 1922, of the High Court of Judicature at Madras. It is unnecessary to restate the prior procedure or judgments which dealt with a number of contentions in law, and questions of facts now either finally disposed of or no longer insisted upon. It is sufficient to say that when leave to appeal was granted by the order of the High Court of April 19, 1923, it was on the specific ground that it raised the substantial question of law, namely, "whether an adoption of a son by a Hindu made after the execution and delivery of a deed of gift, but before registration thereof, renders a deed void as against the adopted son." This is the only ground of appeal which is set forth in the appellant's case, and respondents in their case, paragraph 2, take up the same position. Although, therefore, other grounds were indicated in the argument addressed to the Board which might have been equally fatal to the appeal their Lordships think it right, in all the circumstances, to deal only with that which was the ground of judgment of the High Court, and in respect of which leave to appeal was given.

(2.) The relevant facts, which are no longer disputed, lie within short compass. On September 9, 1891, a certain Vaithilingam Pillai executed a trust deed by which he appointed trustees to administer a trust for charity in the wide sense, including the maintenance of religious services at certain temples. In order to provide the necessary funds for the maintenance of these services, and for discharging the other duties imposed upon the trustees he set apart certain immovable properties belonging to him, the income of which was to be devoted to the purposes of the trust. At the date of the deed, Vaithilingam had no son. The deed, however, was executed on the footing that it was his immediate intention to adopt a son for the perpetuation of his lineage, as although he had two wives, one of whom was living with him at the time, he was still childless and despaired of having issue. There is no question now that this constituted a gift of immovable property within the meaning of Section 123 of the Transfer of Property Act, 1882, nor is there any question that the trust deed, on the day of its execution, was duly delivered to the trustees named therein.

(3.) On September 10, 1891, Vaithilingam, by a deed executed on that day, adopted the appellant, then five years old, as his son. On September 11, he executed a deed of guardianship to the newly adopted son, and on the 12th, a partition deed between himself and the guardian of that son, the effect of which need not, for the purpose of this judgment, be further referred to. On September 15, three days later, the deed of gift was registered. On this it was contended for the appellant that the deed of gift was not complete until registration, and that, as the grantor had before registration adopted the appellant as his son, the latter's rights in the family property had intervened so as to revoke or invalidate the gift. The leading statutory provisions on which the solution of the question depends are Secs.122 and 123 of the Transfer of Property Act, 1882, and Secs.47 and 49 of the Indian Registration Act III of 1877. Section 122 of the Transfer of Property Act is as follows :- Gift is the transfer of certain existing movable or Immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the life-time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.