VENCATANARAYANA PILLAI Vs. SUBBAMMAL

JUDGEMENT

(1.) This is a suit for declaration that the alleged adoption of the 2nd defendant by the 1 defendant the widow of the late V. Venkatarama Pillai is in valid and cannot affect the rights of the plaintiff as next reversioner to the estate of the said Venkatarama Pillai. The factum of the adoption is admitted but it is denied that the 1 defendant had any authority to adopt. The defendants rely on an authority conferred in the Will of the deceased, dated 8 September 1889 but the plaintiff contends that the Will was revoked by the subsequent Will of 21 March 1890, which has been admitted to probate and that whether this is so or not the Will of the 21 March must be taken to be the last Will of the deceased until the grant is revoked of the earlier Will admitted to concurrent probate and that until it is admitted to probate. Section 187 of the Indian Succession Act which applies to Hindu Wills prevents the plaintiff from claiming under it. Some of these questions present considerable difficulty.

(2.) The earlier Will is perhaps wide enough in terms to cover any self-acquired property of the deceased supposing him to have had any, but the latter only disposes of the properties specified in it which are all ancestral properties. The earlier Will recites the testator's intention of adopting his daughter's son C. Venkatakrishna Pillai and in case of his dying before doing so gives his widow power to adopt him. Further in the event of C. Venkatakrishna Pillai dying without issue during the lifetime of the widow, the Will gives her further authority to adopt one of the other sons of the testator's daughter. The second Will was made after the testator had adopted C. Venkatakrishna Pillai. The authority to widow to adopt him is, therefore, omitted. Practically the only other change and at any rate the most material change is that in case of C. Venkatakrishna's death without issue during the life-time of the widow, the later Will does not give her any authority to adopt another son of the testator's daughter, but provides that the property shall be divided among the daughter's issue. Now it appears to me that this provision is entirely inconsistent with the provision in the earlier Will giving authority to adopt after C. Venkatakrishna's death without issue as in the event of such an adoption the whole of the properties covered by the later Will being ancestral would go to the son so adopted and would not be available for division among the issue of the testator's daughter as is expressly provided by the later Will. In construing the later Will we are not,in my opinion, at liberty to go outside of it, or to cut down the express provision that in a certain event the properties are to be divided among the daughter's issue, and read it as meaning that such a division is to be conditional upon the widow not making an adoption under the authority conferred by the Will. Unless we do this there is an absolute inconsistency between the two Wills and this being so the later must prevail. On this part of the case in spite of the learned and lengthy argument of the Advocate-General I have not been able to feel any doubt and have no hesitation it coming to the conclusion that the provision in the, later Will as to division among the daughter's issue was deliberately inserted in the later Will in substitution of the authority to adopt in the earlier. Will which was thereby intended to be revoked by it. If this be so then supposing the disposition in the second Will to be operative, there would be a clear revocation and it is unnecessary to refer to the more doubtful cases which have been decided in the Probate Court.

(3.) The learned Advocate-General, however, drew attention to the fact that after the adoption of C. Venkatakrishna Pillai by virtue of which the ancestral properties of the testator became the joint family properties of the testator and Venkatarama, the testator had no power to dispose of joint family properties by Will or to provide how it was to go in the event of Venkatakrishna Pillai's death without issue. Accordingly it has already been decided as between these parties in 0. S.A. No. 15 of 1895 that the second. Will is void and inoperative according to Hindu Law and that the present plaintiff is entitled to succeed as next reversioner on the widow's death.