Kalapala Sri Hari Rao, minor by father and guardian Venkatakrishnaiah v. Kalapala Venkaiah
1951-11-22
P.V.RAJAMANNAR, VENKATARAMA AYYAR
body1951
DigiLaw.ai
Venkatarama Ayyar, J.- Defendants 1 to 3 are the appellants. The properties which are the subject-matter of this litigation belonged to one Kotayya who died sometime in May, 1910, leaving behind a widow called Venkamma. He had also executed a will on 30th April, 1910, under which he conferred power on his widow to make an adoption. In exercise of this power she adopted the 1st defendant on nth September, 1943 and died on 6th November, 1943. The plaintiff and defendants 2 and 4 to 9 are the nearest reversioners of Kotayya and would have been entitled to succeed to his estate but for the adoption. The plaintiff sued to recover his 1/8th share in the suit properties on the allegation that the 1st defendant was not in fact adopted and that even if the adoption was true it was invalid as not being within the terms of the authority contained in the will. The Courts below held that the adoption was true but that it was not valid because the directions in the will had not been strictly followed by the widow. It is against this decision that defendants 1 to 3 prefer this appeal. The will executed by Kotayya has been marked as Exhibit D-1 and paragraphs 4 and 5 therein relating to the authority to adopt conferred on the widow are as follows: “For the perpetuation of my family and for the performance of our obsequies, my wife Venkamma shall adopt a son of one of my brothers according to her choice, whenever it is convenient for her, bring him up till he ceases to be a minor, perform his marriage, etc., and preserve the immoveable properties described hereunder; and from the income derived therefrom, my wife shall pay the cist, etc., thereon and discharge the debts mentioned hereunder, hand over the income, or the balance of the debts to him when he attains majority and he and my wife shall live on amicable terms.
If for any reason my adopted son and my wife do not agree with each other, my wife Venkamma shall take possession of the land, bearing demarcation No. 170/3 of the extent of 1 acre 90 cents out of the magani lands situate in Kalavapamula village fallen to my share and shall independently enjoy only one acre out of it with all absolute rights of gift, transfer, sale, etc., therein and with regard to the remaining land of the extent of 90 cents my wife shall pay the cist thereon and enjoy only the income derived therefrom during her lifetime and convey the same to the adopted son afterwards. With reference to all the matters mentioned above, authority has been given to my wife Venkamma to adopt till the adoption stands.” Kotayya had two brothers, Appayya and Ratnam. Defendants 2 and 4 to 7 are the sons of Appayya and the plaintiff and defendants 8 and 9 are the sons of Ratnam and all of them were alive at the date of the will and at the time of the death of the testator. On nth September, 1943, when the 1st defendant was adopted they were not available for adoption. The contention of the plaintiff is that the will conferred on Venkamma only a limited power of adoption and that therefore, she had no authority to adopt any boy other than the brother’s sons of Kotayya. The contention of the appellants on the other hand is that the will conferred on the widow a general power to adopt, that the brother’s sons were mentioned only by way of preference and as they were not available for adoption on nth September, 1943, Venkamma was entitled to adopt any boy of her choice and that the adoption of the 1st defendant was, therefore, valid. On these contentions two questions arise for determination. (1) Is the power to adopt limited to the boys mentioned in the will or is it a general power to be exercised subject to the directions contained in the will and (2) If it is a general power, is the adoption of the 1st defendant valid on the ground that the directions became impossible of performance at the date of the adoption? The determination of the first question must depend on the construction of the will and of the second question on the rules of Hindu law.
The determination of the first question must depend on the construction of the will and of the second question on the rules of Hindu law. Taking up the first question it is provided in the Will that the testator authorises the widow to adopt a son “for the perpetuation of his family and for the performance of the obsequies”. That clearly is his principal object. The further provision that the widow should adopt one of his brothers’ sons is a direction subordinate to it. Moreover the testator declares in paragraph 5 that Venkamma should have authority to adopt “till the adoption stands.” These words unmistakably confer a general power of adoption on the widow. We have not to decide in this case whether a general intention to be represented by an adopted son could be inferred when the testator authorises the adoption of a specified boy and there is no further indication of his intention in the will. In Chenga Reddi v. Vasudeva Reddi1, the facts were that the husband conferred an authority on his widow to adopt a boy named Chenga Reddi. The widow adopted him but he died. Then she made a second adoption. The question was whether she had authority to make the second adoption. Sankaran Nair, J. held that as the testator was anxious to be represented by a son a general power of adoption could be implied. This is what he observed: “There is little doubt that in the opinion of their Lordships of the Privy Council, if the intention of the husband that he should be represented by an adopted son is clearly expressed in (he will, the adoption should be upheld unless there is anything in the will to show that a second adoption should not be made.” Oldfield, J., however, differed. He held that as express authority was given only for adopting a specified boy, a general authority to adopt any boy could not be implied. In Sindigi Lingappa v. Sindigi Sidda Basappa2, the widow was authorised to adopt either Gavappa or Lingappa. She made no attempt to adopt either of them though both of them were available and adopted another boy. The question was raised whether a general intention to adopt a boy could be inferred when the will specified the boys to be adopted and there was no other provision.
She made no attempt to adopt either of them though both of them were available and adopted another boy. The question was raised whether a general intention to adopt a boy could be inferred when the will specified the boys to be adopted and there was no other provision. The Court referred to the conflict of views expressed by the learned Judges in Chenga Reddi v. Vasudeva Reddi1, but declined to express any opinion on the question, as it held that the adoption would in any event be void as the directions of the husband had not been followed. In this case it is clear beyond doubt that the testator intended to confer on Venkamma a general authority to adopt with directions as to the boys to be adopted attached thereto and that it is not a power limited to the adoption of those boys. That takes me on to the second question, whether the adoption of the first defendant can be held to be valid on the ground that the adoption of the brother’s sons had become impossible at the time of the adoption on nth September, 1943. This question arose directly for decision in Lakshminarayana Sastri v. Sundararamayya3. The facts of that case were that one Dattatrayalu executed a will on 27th November, 1896 conferring on his widow power to adopt one Durgayya and in case the father of Durgayya was unwilling to give him in adoption to adopt any boy of her choice. Though Durgayya was available for adoption in 1896 and long afterwards, the widow did not exercise the power of adoption. Then after Durgayya became unavailable she adopted the plaintiff, Lakshminarayana. It was argued that the general power conferred on the widow to adopt was subject to the limitation that Durgayya was to be adopted and that as the widow deliberately avoided adopting Durgayya when that could have been done it was not open to her to fall back upon the genera power and adopt another. In negativing this contention the learned Chief Justice, Mr. Rajamannar observed as follows: “There can be no doubt that if the husband when giving authority to the widow directs that a particular boy should be adopted, the widow would have no power to make an adoption of another boy unless the boy mentioned by her husband was not available.
In negativing this contention the learned Chief Justice, Mr. Rajamannar observed as follows: “There can be no doubt that if the husband when giving authority to the widow directs that a particular boy should be adopted, the widow would have no power to make an adoption of another boy unless the boy mentioned by her husband was not available. At the same time it is clear that if the boy indicated by the husband is not available the widow has the power to make an adoption of another if there is a general intention manifest in the document that the widow should make an adoption.” In answer to the contention that the widow had ample opportunity to adopt Durgayya and that as she had deliberately delayed exercising the power, the adoption of Lakshminarayana must be held to be invalid it was observed, “It is now well established that the motive of a widow in making an adoption is absolutely irrelevant for deciding on its validity. What then is the position? On the date of the adoption, it obviously could not be said that the boy indicated by her husband was available. If so, there is nothing in the will to prohibit the widow from adopting any other boy. In the absence of direct authority, we find ourselves unable to hold that because the boy indicated by her husband was available at some period after her husband’s death when she could have made an adoption the widow is precluded from making an adoption at a future date when at that time the boy indicated by her husband is not available.” I agree with these observations. It must be remembered that the power of adoption is conferred on a widow for the benefit of her husband and his ancestors, and, therefore, considerations of the conduct of the widow would be irrelevant in judging the validity of the adoption. The widow might have acted improperly in delaying the adoption but to hold that the adoption should fail for that reason would be to visit the husband with the consequences of the default of the widow. It is well established that the validity of an adoption could not be impeached on the ground that the widow was not actuated by religious motives or that her real object was to spite the reversioners or her co-widow.
It is well established that the validity of an adoption could not be impeached on the ground that the widow was not actuated by religious motives or that her real object was to spite the reversioners or her co-widow. In Kanakaratnam v. Narasimharao1, it was held by a Full Bench that an adoption would not be invalid because the widow was actuated by improper motive, namely, to defeat her co-widow. The following observations occurring at page 180 may be cited. “Bearing in mind that the adoption confers spiritual benefit on the deceased husband and that in the Madras Presidency a widow can only adopt when she has received authority to do so, it seems to us that her motive is entirely irrelevant. However spiteful her action may be towards others, the benefit conferred upon her deceased husband by her action is in no way affected and the fact that she cannot act without authority makes the position all the more clear.” On the same reasoning the fact that the change of circumstances under which it became possible to adopt the 1st defendant was brought about by the widow by her own delay would not affect the validity of the adoption. It is hardly necessary to add that a widow is entitled to in law to exercise the power of adoption at any time she chooses and Exhibit D-1, the will, expressly authorises her to adopt “whenever it is convenient for her.” I shall now consider the other cases cited by Mr. K.V. Venkatasubramania Aiyar, the learned advocate for the appellants. In Veeraperumal Pillai v. Narain Pillai2, the husband conferred an authority in these terms: “If Iyah Pillai begets a son, beside his present son, you are to keep him to my lineage.” The widow adopted another boy without waiting for Iyah Pillai to beget another son and the validity of this adoption was questioned. It was held on a reading of the will that it conferred a general power to adopt a boy, that the mention of a son of Iyah Pillai as the boy to be adopted was by way of preference, that the widow was not bound to wait indefinitely and that, therefore, the adoption was valid. The present is the converse of that case.
The present is the converse of that case. There the widow adopted without waiting for the boy mentioned in the will and here the widow waited until the boy mentioned ceased to be available. But there is this in common between the two cases; that the husband had expressed a general intention to be represented by art adopted son and at the time of the adoption the boy mentioned in the will was not available for adoption. In Suryanarayana v. Venkataramana1the husband conferred on the widow a general power to adopt. She made an adoption but the adopted boy died. Then again she adopted. It was the validity of this adoption that was in question. It was held that as the power to adopt was general the second adoption was valid. The following observations occurring at page 387 may be quoted: “The object and purpose of the authority given by the husband was to perpetuate his family as well as to secure his spiritual benefit and it would be unreasonable to hold that an accident such as the early death of the boy first adopted should be allowed to frustrate the fulfilment of his object and to preclude the widow from making another adoption in the absence of any legal impedient to her doing so.” When the general intention of a Hindu to be represented by an adopted son is clear, as in this case, there seems no reason why effect should not be given to such intention, if it is possible to do so without contravening the law. Each case must be decided on its own merits, without applying too strict a rule of construction in regard to powers of this description." This decision was taken on appeal to the Privy Council and in affirming the judgment of the High Court the Privy Council observed as follows in Suryanarayana v. Venkataramana1. "Their Lordships agree with the learned Judges of the High Court in the opinion that the main factor for consideration in these cases is the intention of the husband.
"Their Lordships agree with the learned Judges of the High Court in the opinion that the main factor for consideration in these cases is the intention of the husband. Any special instructions which he may give for the guidance of his widow must be strictly followed; where no such instructions have been given, but a general intention has been expressed to be represented by a son their Lordships are of opinion that effect should, if possible, be given to that intention." In that case there were no special directions by the testator with reference to the exercise of the power and therefore, the decision does not cover the point which falls to be determined in this appeal. Mr. D. Munikanniah, the learned advocate for the respondents, relied on the decisions in Amirthaien v. Ketharamaien2, Sundarasividu v. Adinarayanan3, Sitabai v. Bapu Anna Patil4and Rajendra Prasad Bose v. Gopal Prasad Sen5. In Amirthaien v. Ketharamaien2, the widow was authorised to adopt a boy”from the children that may be born in the families of my brothers“. There were such children available for adoption but the widow ignored them and adopted another boy. The question was whether this adoption was valid. This Court held that there was no general power conferred on the widow to adopt, and that it was a limited authority to adopt the boys mentioned. Moreover as the boys of the class mentioned in the will were available the adoption would be bad as the directions of the testator had not been followed. This was not a case in which a general power to adopt was conferred nor was it a case in which it was impossible to carry out the directions of the testator at the time of the adoption. In Sundarasivudu v. Adinarayanan3, the authority was in these terms: "My wife shall adopt a suitable boy from our family or a boy belonging to the same gotra as myself." The widow adopted her own brother who neither belonged to the family of the testator nor was he of the same gotra. It was held on a construction of the will that there was no general power to adopt conferred on the widow and that further she did not carry out the instructions of her husband. The adoption was accordingly held invalid. This is similar to the decision reported in Amirthaien v. Ketharamaien2.
It was held on a construction of the will that there was no general power to adopt conferred on the widow and that further she did not carry out the instructions of her husband. The adoption was accordingly held invalid. This is similar to the decision reported in Amirthaien v. Ketharamaien2. Reliance was placed on the following observations occurring at page 238: "In this view we do not think it necessary to examine the other contention of Mr. Somasundaram that the widow made every possible attempt to make the adoption but failed to secure a boy of the qualifications required by the testator and therefore the adoption must be upheld. The contention is that we must so read the will as to hold that, if the conditions imposed by the testator were not possible of fulfilment the widow was permitted to adopt a boy of her own choice by adding the words ‘if possible’ to the power conferred. We are, therefore, unable to uphold the contention of Mr. Somasundaram." These observations must be taken along with the finding of the learned Judges that there was no general power of adoption conferred on the widow. In Sitabai v. Bapu Anna Patil1, the authority was in these terms: "My wife should as far as possible adopt Shankar the second son of my elder brother. If he (the boy) cannot be obtained any other boy should be adopted with the advice of the trustees." Owing to enmity between the two families, the widow would not adopt Shankar and another boy was adopted. It was held that the widow had not followed the directions of her husband and that therefore, the adoption was void. The power of adoption was no doubt general but it was expressly found that the boy named was available for adoption. In Rajendra Prasad Bose v. Gopal Prasad Sen2, the husband authorised the widow to adopt a boy with the permission of his father. After the death of the father she adopted the son. It was held by the Privy Council that the adoption was invalid because the permission of the father was a condition precedent to the exercise of that power.
After the death of the father she adopted the son. It was held by the Privy Council that the adoption was invalid because the permission of the father was a condition precedent to the exercise of that power. But I have already held that the power to adopt is general, and to hold that the adoption of the boys named is a condition precedent to the exercise of that power is to convert a general power into one limited to adopting specified boys. This decision is moreover largely based on the construction put on the Anumathi Patra that the paramount intention of the husband in authorising the adoption was secular and not religious. It would be unsafe to apply the principle of this decision to the present case where the will discloses that the testator was actuated by religious considerations. As observed by the Judicial Committee in Narendra Nath Sircar v. Kamal Basini Dasi3at page 572, "To construe one will by reference to expressions of more or less doubtful import to be found in other wills is for the most part an unprofitable exercise." In Shib Narayan Chowdhury v. Shib Narayan Chowdhury4. Sir John Edge observed as follows: "Their Lordships may observe that it is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in another case." The result of the authorities may be summed up as follows: (1) Where a power to adopt is conferred on a widow it may be either general or limited. Where the power specified the boy or boys to be adopted, it is a question of construction of the instrument whether it is a general power indicating a preference in favour of the boy or boys named, or whether it is itself limited to adopting the boy or boys named. It is an open question whether an authority to adopt a named boy without more can be construed as conferring a general power of adoption. Chengareddi v. Vasudeva Reddi5and Sindigi Lingappa v. Sindigi Sidabasappa6. (2) Where the power is limited to adopting a specified boy or boys the adoption of any other boys in exercise of this power would be invalid. Amirthayyan v. Ketaramayyan7and Sundarasivudu v. Adinarayana8. (3) Where the power is general and there are no special directions then successive adoptions would be valid.
Chengareddi v. Vasudeva Reddi5and Sindigi Lingappa v. Sindigi Sidabasappa6. (2) Where the power is limited to adopting a specified boy or boys the adoption of any other boys in exercise of this power would be invalid. Amirthayyan v. Ketaramayyan7and Sundarasivudu v. Adinarayana8. (3) Where the power is general and there are no special directions then successive adoptions would be valid. Suryanarayana v. Venkataramana9and Suryanarayana v. Venkataramana10. (4) Where the power is general and special directions are attached to it then these directions must be strictly followed. If not the adoption will be invalid notwithstanding that the authority is general. Sitabai v. Babu Annapatil1. (5) Where the power to adopt is general and there are also special directions attached to it but those directions become impossible of observance then an adoption can validly be made in exercise of the general power. Lakshminarayana Sastri v. Sundaramayya2. Applying these principles and bearing in mind that the Courts should not be “astute to defeat an adoption not clearly in exercise of the power”. Bhagwat Koer v. Dhanukdari Prasad Singh3, I am of opinion that Exhibit D-1 conferred on Venkamma a general power to adopt and that on 11th September, 1943, the persons mentioned in the will not being available for adoption she could validly adopt another boy of her choice and that the adoption of the first defendant is therefore valid. In the result this appeal is allowed and the suit is dismissed with costs of the appellant throughout. Rajamannar, Chief Justice-I agree. K.S. ----- Appeal allowed.