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1949 DIGILAW 64 (RAJ)

Gadiraju Sithayya v. Gadiraju Laxmipathi Raju

1949-12-22

FAZAL ALI, KAMA, MAHAJAN, PATANJALI SASTRI

body1949
Patanjali Sastri, J.—This is an appeal from a judgment and decree of the High Court of Judicature at Madras dated July 9, 1946, affirming a decree of the Court of the Subordinate Judge of Narsapur directing the registration of a deed of adoption dated May 4, 1941. 2. The first respondent, who is the only contesting respondent in this appeal and is hereinafter referred to as "the respondent", claims to have been adopted on May 4, 1941 by one Suraparaju who died on the day following. The deed was presented for registration before the sub-Registrar of Bhimavaram by Venkatapathiraju, the natural father of the respondent. The respondent was then a minor. As the appellant, who is the widow of Suraparaju, disputed the legality of the adoption and objected to the registration, the officer refused to register the document. An appeal to the District Registrar having proved unsuccessful, the respondent brought the present suit through his next friend under S. 77 of the Indian Registration Act, 1908, praying that a decree be passed directing the registration of the deed. 3. The appellant who was the first defendant in the suit pleaded, inter alia, that there was no valid presentation of the deed by a person entitled to present it under the Registration Act and that the document was therefore not registrable. That question was dealt with as a preliminary issue, and the court upheld the plea and dismissed the suit. On appeal the High Court held that the presentation of the deed was in accordance with the statutory requirement and remanded the suit for trial of the issue as to the genuineness of the deed which the appellant had impugned in her written statement. On the remand the learned Subordinate Judge decreed the suit, finding that the deed was a genuine document and the decree was affirmed by the High Court. 4. The short point for determination in this appeal is whether the deed of adoption was presented for registration by a person entitled to do so. On the remand the learned Subordinate Judge decreed the suit, finding that the deed was a genuine document and the decree was affirmed by the High Court. 4. The short point for determination in this appeal is whether the deed of adoption was presented for registration by a person entitled to do so. Section 32 of the Registration Act requires that every document to be registered under the Act should be presented for registration by (a) some person execution or claiming under the document, or (b) the representative or assign of such person, or (c) the agent of such person, representative or assign duly authorised by power of attorney executed and authenticated in the manner mentioned in S. 33. Section 2(10) defines a representative as including "the guardian of a minor and the committee or other legal curator of a lunatic or idiot". In Ma Shwe Mya v. Maung Ho Hnaung (1. 50 Cal. 166.) it was held by the Privy Council that "the term representative in S. 32 refers to the legal personal representative or (by virtue of S. 2) the guardian or committee of the person described and does nor include a clerk or agent" The result is that Venkatapathiraju who presented the deed in question for registration would be a proper per-son to present the document only if he could be held to be the guardian of the minor who claims under it. It is urged for the appellant that inasmuch as the respondent claims to have been adopted by Suraparaju and thus to have passed into a different family, Venkatapathiraju was no longer his natural or legal guardian and so was not his representative within the meaning of S. 32. We are unable to accept this contention. 5. While it is undoubtedly the respondents case that he has been adopted into a different family, it must be remembered that the appellant has been denying his adoption and repudiating his status as a member of her family. In consequence of such repudiation the respondent, as the evidence clearly shows, has been living under the protection of his natural father in his own village in the same manner as before the alleged adoption. In consequence of such repudiation the respondent, as the evidence clearly shows, has been living under the protection of his natural father in his own village in the same manner as before the alleged adoption. If the respondent could not, consistently with his case, claim that his natural father was still his lawful guardian, neither could the appellant, in view of her denial of the adoption, object that the natural father had ceased to be such guardian. Where the factum or validity of the adoption of a minor is denied or disputed by the person who would otherwise be his natural guardian in the adoptive family, the guardianship of the minors natural fa her must, in the absence of any appointment by the court, necessarily continue for the purpose of asserting and safeguarding his rights as a member of the adoptive family, and we hold, accordingly, that the respondents natural father was competent in the circumstances of the case, to present the deed of adoption for registration as his representative. 6. In Venkatap Payya v. Venkata Rangarao (l. 52 Mad. 175.) the Judicial Committee had occasion to consider the competence of the natural father of an adopted child to present an authority to adopt for registration. While conceding that the natural father ceased to be the natural guardian after the child had been adopted, their Lordships posed the problem : "But what is to happen when a hild of tender years, as was the case here, is actually residing with his natural father and has no appointed guardian? When one remembers that the definition of representative does not make it equal to guardian but says that it includes guardian, might it not well be said that in these circumstances and in the absence of any legally appointed guardian a natural father is the representative?" Their Lordships, however, felt themselves relieved of the necessity of answering the question, as they found that the natural father in that case was the nearest agnate of the adopted boy (who was adopted in the same family) and as such he was held to be "the proper person to be appointed guardian and the proper person to act as the natural guardian in the absence of any judical appointment". However that may be, we are satisfied that the answer to the question propounded by their Lordships must be in the affirmative, and the natural father is, in such circumstances, even apart from any agnatic relationship after adoption, the representative of the adopted child competent to act for him in matters relating to the registration of the adoption deed. 7. It was suggested that the surviving brother of Suraparaju, who was the third defendant in the suit and supported the adoption, was the only proper person, as the nearest agnate in the adoptive family, to have presented the deed for registration according to the decision referred to above. We cannot agree. Beyond giving evidence in these proceedings in support of the adoption he is not shown to have taken any interest in the affairs of the minor and his agnatic relationship depended on the truth of the alleged adoption which was in dispute. In the case before their Lordships, a child of the same family having been adopted, the natural fathers agnatic relationship was an admitted fact. 8. Learned counsel for the appellant placed reliance on the ruling of the Privy Council in Amba alias Pad-mavathi v. Shrinivam Kamathi (1. 26 C.W.N. 369.) where it was held that presentation for registration of a deed of gift by the father of the donee, who was a minor married girl, was unauthorised as he was not a representative within the meaning of S. 3 of the Registration Act of 1877, although the girl was still living under his protection not having been sent to her husbands home on account of ill-treatment of the husband. The ratio decidendi was that the father had ceased to be her natural guardian, her legal guardian after her marriage being her husband. Counsel insisted that the decision was a direct authority for the view that a de facto guardian cannot be regarded as a representative within the meaning of S. 2 (10) of the present Act, which is in the same terms as S. 3 of the Act of 1877. The case is, however, distinguishable. There was no dispute as to the status of the donee as the lawfully wedded wife of her husband and, that being so, the latter was un-questionably her lawful guardian. The case is, however, distinguishable. There was no dispute as to the status of the donee as the lawfully wedded wife of her husband and, that being so, the latter was un-questionably her lawful guardian. While such guardian, was in existence, the father of the minor, it was held, was not competent to present the gift deed for registration. The facts being essentially different the case has no application here. The appeal is dismissed with costs.