RAJA RAO VENKATA SURYA MAHIPATI RAMA KRISHNA RAO BAHADUR Vs. COURT OF WARDS AND VENKATA KUMARI MAHIPATI SURYA RAO

JUDGEMENT

(1.) THE suit in this appeal was brought by the adopted son of the late Rajah of Pittapur against the Court of Wards and the second respondent, who is the minor son of the late Rajah. The plaint stated that the second respondent was not the son of the late Rajah or of his wife; it also disputed his title to succeed under any wills left by the late Rajah, and alleged that a will said to have been made by him in favour of that defendant as his natural-born son contravened the contract made at adoption; that the will was void by law and custom; and that the properties dealt with by it were inalienable and could not pass by it. The plaint prayed for a declaration that the second respondent was not the son of the late Rajah and that the will was invalid. The Court of Wards in its answer denied that the plaintiff had a cause of action against it, and said that it was not liable to be sued. The second respondent admitted the adoption, asserted that he was the begotten son of the late Rajah, that the will was absolute and unconditional, that certain property left by the Rajah was impartible descending to the begotten son alone, and that the plaintiff - as the adopted son was entitled only to one-fifth share of the self-acquired property. The suit was tried by the District Judge of Godaveri who made a, decree which declared that the second respondent was not the son of the late Rajah, and that the will in his favour was wholly ineffectual and invalid. The defendants appealed to the High Court, which reversed the decree of the District Court and dismissed the suit. The present appeal is from that decision; The conclusions which the High Court came to in favour of the appellant on the other questions in the appeal to it made it unnecessary for it to decide the issue whether the second respondent was the Bon of the late Rajah, and that question was not determined by the Court.

(2.) AS to the contention that there was a contract which prevented the Rajah from making a will which would defeat the rights vested in the appellant by the adoption, their Lordships do not feel any difficulty. The agreement relied upon, after stating that the Rajah had adopted the appellant and given him the name which he now has and constituted him heir to his zemindari of Pittapur, &c, and to all other properties movable and immovable, says: "I (the Rajah) agree in compliance with your request to your retaining with my adopted son the thirty servants you have been retaining and changing them from time to time and to permit you or any one of your family to see him whenever you or they may come to see him." There is nothing about the Rajah not exercising any power which he might have by law of making a will. Saying he had constituted the appellant heir to his property means only that he had given him the same right of inheritance as a natural son would have. Mr. Mayne's argument, if their Lordships rightly understood it, that there was an implied contract not to make a will, the consideration for it being the giving of the son by the natural father, is a novel one and without any authority to support it. If it were right, an adopted son would be in a higher position than a natural son. A Hindu would be unable to adopt a son without depriving himself of any power which he might have by law of alienating his property, or at least of disposing of it by a will.

(3.) THE third and really important question in the appeal is whether the Rajah had power to alienate the impartible estate It is stated in the case for the appellant that for the purposes of this appeal the appellant admits that the property was not inalienable by virtue of any special family custom or tenure attaching to the zemindari.