PRALHAD AMBADAS UPASANE Vs. SHANTABAI

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal, their suit having been dismissed in the trial Court and their first appeal having failed. The following genealogical tree will show the relationship between the parties excepting defendant respondents 2 and 3, who are purchasers from defendant 1. SITARAM ________________________|___________________ | | | Ambadas Manohar Ramchandra | (d. 23-12-33) | ___|___________________ | | | | Deorao (Plff. 2) Shantabai | (Adopted by Manohar) (Deft. 1) _______|______________________ | | | Pralhad Keshao Krishna (Plff. 1) (Deft. 5) (Deft. 4) |_________________________________ | | | Madhukar Dattatraya Digambar. (Plff. 2) (Adopted by Manohar) The plaintiffs are Pralhad and his minor natural son Dattatraya. Pralhad claimed that Manohar had died in a state of jointness with his brother Ambadas (Ramchandra had died previously) and that consequently be and Dattatraya his son, succeeded to Manohar's property by survivorship. In the alternative, it was pleaded that in the event of it not being established that Pralhad and Manohar were members of a joint family at the time of Manohar's death, Dattatraya had been adopted by Manohar shortly before his death and had taken the name of Deorao and is consequently entitled to succeed to Manohar's property to the exclusion of Mt. Shantabai, defendant 1, who, had there been no adoption, would be Manohar's heir. Finally it was pleaded that in the event of neither of the previous contentions being upheld Deorao was entitled to succeed as a devisee by virtue of a document dated 22-12-1933 executed by Manohar on the day before he died which read in conjunction with a will executed on the same day, had the force of a will although it purported to be a deed of adoption in favour of plaintiff 2. Both the trial Court and the lower appellate Court have held against the plaintiffs on all three contentions. It has been found that Manohar had been separated before his death, that the plaintiffs had failed to prove that Manohar had adopted plaintiff 2 and that the document, Ex. P-46, cannot operate as a will.

(2.) IN appeal before us it is conceded that the first two questions posed in the memorandum of appeal, namely that of the jointness of the family and of the actual adoption of Dattatraya, cannot be pressed as the findings on them are findings of fact; but it has been contended that the deed of adoption, which was executed one month after the date on which the adoption is said to have taken place, is in fact a devise of property to Dattatraya as a persona designata and that although he may be therein described as an adopted son the devise must nevertheless hold good.

(3.) WHERE in a deed of a testamentary character a devisee or donee is wrongly described as an adopted son the law is that the validity of the bequest depends on the intention of the testator which is to be gathered from the terms of the document, or if necessary, from the surrounding circumstances. It may be that the devise is intended to operate only by reason of the devisee being treated as an adopted son, in which case the gift would fail, or it may be that the intention of the testator is clear that the gift is personal to the boy named irrespective of any description that may be given (vide Mayne on Hindu Law and Usage, Edn. 10, para. 216, and Mulla's Hindu Law, Edn. 9, Section 511). This proposition is to be gathered from a series of cases beginning with Nidhoomoni Debya v. Saroda Pershad Mookerjee (78) 3 I.A. 253 where a boy, declared in a will to be adopted and whose adoptive mothers were directed to perform certain ceremonies and bring him up and hand over the property on his majority, was held to be entitled under the will despite the fact that the ceremonies to be performed in the future were only partially completed. The property here had been devised to the son already irrespective of the ceremonies which were directed to be performed at a later date. In Fanindra Dab Raikat v. Rajeswar Das (85) 11 Cal. 463 a man, in anticipation of imminent death, executed an angikar-patra authorising a boy whom he said he had adopted to offer oblations of water and pinda to him and his ancestors on his death by virtue of his being his adopted son. The document then continued: "Moreover you shall become the proprietor of all the movable and immovable properties which I own." Their Lordships, holding that the question was whether the mention of him as an adopted son was merely descriptive of the person to take under the gift, or whether the assumed fact of his adoption was not the reason and motive of the gift, held that the latter view was correct and that it was the executant's intention to give his property to Rajeswar, the person mentioned in the deed, as his adopted son capable of inheriting by virtue of the adoption. The adoption was in fact invalid and consequently the rule that it was not essential to the validity of a devise or bequest that all the particulars of the subject or object of the gift should be accurate was not applicable. These are the principal cases indicating when in such circumstances a devise is valid and when it is not valid. In Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards (99) 22 Mad. 383 being an appeal from the decision reported in The Court of Wards v. Venkata Surya Mahipati Rama Krishna Rao (97) 20 Mad. 167 a Raja by his will specifically devised his property to a person whom he described as his natural son. Although it was established in the course of the case that the devisee was not the natural son nevertheless it was held that there was a gift in the will to the person so misdescribed, personally, and that the false description, which necessarily had to be assumed to be false, in the will did not vitiate it. In Lali v. Murlidhar (06) 28 All. 488 the same question arose, namely whether in the case of an adoption which was held to be an invalid adoption the alleged adopted son was entitled to take under a wajib-ul-arz which in that particular case was treated as a will. It was held there that the intention of the deviser was to give the property to the devisee as his adopted son capable of inheriting by virtue of the adoption and that as the adoption was invalid in law the gift had no effect upon the property.