ORDER (7-3-1949.)

(Delivered by Panchapakesa Ayyar, J.)

The first appellant here (since deceased) was the plaintiff in O.S No. 20 of 1944 on the file of the Sub Court, Cocanada. He had filed that suit for a declaration that he was the nearest reversioner of one Gadi Venkataratnam and for the recovery of the suit properties, which had belonged to the said Venkataratnam, from the 1st respondent, who was claiming to be the validly adopted son of Venkataratnam, and from the other respondents who were alienees or tenants in respect of the properties. He had attacked the adoption of the 1st respondent as invalid, and the will dated 13-12-1896, said to have been executed by the said Venkataratnam, as not genuine and as not executed in a sound and disposing state of mind and as therefore not conferring any authority on Viyyamma, Venkataratnam's widow, to adopt. He had contended further that, even if the will was genuine, the adoption was not in accordance with the authority conferred in the will, and that Ex. D.9, the agreement dated 15-5-1897 executed in Viyyamma's favour by Surayya and Gopalakrishnamma, two nearest sapindas, authorising her to adopt any one she liked if they did not get a second son in ten years to give in adoption, was vitiated by improper motives and fraud, as executed for their own personal gain and in fraud of his reversionary interests, and was, therefore, not binding on him. The original of the will dated 13-12-1896 was not produced in Court, and the 1st defendant alleged that it was lost, and produced Ex. D.8 a registration copy of it, obtained as early as 1905, and that was marked in the lower Court with the consent of both sides. The lower Court held that the execution of the original and its genuineness were proved by the production of this ancient registration copy as well as by the evidence of D.W 5 that his father had gone to Venkataratnam's house to attest the original. It held further that the will might on the strength of the production of this ancient copy be presumed to have been executed in a sound and disposing state of mind. Relying on the evidence of D.Ws 2 to 6, eye-witnesses to the factum of adoption, and on the recitals in the adoption agreement in Ex. D.7, it held that the factum of the adoption of the 1st defendant, Viyyamma's sister's son, by Viyyamma in 1915, with Datta Homam and giving and taking and other formalities, had been fully proved. In that view, it dismissed the plaintiff's suit with costs as against the contesting defendants 1, 16, 17 and 19 to 21. It, however, at first, decreed the suit in favour of the plaintiff with mesne profits as against the ex parte defendants 2 to 9, 10 to 15 and 18, who were tenants and alienees in possession of some of the suit properties. An application under Ss. 151 and 152 Civil Procedure Code was put in by the 1st defendant on 3-1-1945 to cancel the decree against the ex parte defendants, as it was passed by accidental slip and omission and was against the definite finding of the Court that the plaintiff had no right to question the alienations of Viyyamma and to dismiss the suit was against them also. The plaintiff, of course, opposed this petition. But the lower Court allowed the petition and dismissed the suit as against the ex parte defendants also by an order dated 17-1-1945. This appeal is against that order of dismissal also. The 2nd and 3rd appellants are the plaintiff's sons and have been brought on record as the legal representatives of the 1st appellant.

To understand the case, the following geneological table may be found useful.

It will be seen from the table that but for the adoption of the 1st defendant by Viyyamma in 1915, the plaintiff, Venkataratnam, and his sons, the second and third appellants, will succeed to the properties of the deceased Venkataratnam as the nearest reversioners. So, the all important question is whether the adoption of the 1st defendant is true and valid. If it is true and valid, the plaintiff and his sons, appellants 2 and 3, have no right to question the alienations of Viyyamma or the 1st defendant, and the question of the lower Court's setting aside the decree it granted against the ex parte defendants will become purely a technical one, namely, whether it had power to do so under Ss. 151 and 152 Civil Procedure Code or should have insisted on a review petition being filed with proper stamp duty by the 1st defendant, or insisted on the ex parte defendants filing a petition for setting aside the ex parte decree.

The question regarding the adoption of the 1st defendant may be split up into three questions:

1. Was there a giving and taking of the 1st defendant by Viyyamma, Venkataratnam's widow, as Venkataratnam's adopted son, with datta homam and other ceremonies and formalities?

There is no doubt whatever, from the evidence on record, that this question has to be answered in the affirmative. D.Ws 2 to 6 swore that they were present at the adoption ceremony and that everything was done properly. An adoption deed Ex. D.7 was also executed, and D.W 4 was an identifying witness. A petition was sent to the Collector intimating to him about the adoption. The authorities accepted the adoption, and recognised the 1st defendant as the heir to the properties of Venkataratnam and allowed him to pay the kist therefor. The 1st defendant propuced the kist receipts signed by the Village Munsif. Even P.Ws 2 and 4 spoke to the recognition in the village regarding the adoption, and to Viyyamma's admitting it and recognising the 1st defendant as her adopted son. The evidence also showed that since the adoption the 1st defendant had been living in Venkataratnam's house, with Viyyamma, for 22 years, till Viyyamma's death in 1937, and that he had continued to live there even thereafter, and that this pauper suit was filed only seven years after Viyyamma's death by the plaintiff who must have known about the factum of adoption even from the date of adoption as he was in the village that day according to him. We have therefore no hesitation whatever in accepting the factum of adoption of the 1st defendant by Viyyamma as proved.

2. Was this adoption valid by virtue of the alleged authority given to the widow by Venkataratnam in this will?

The learned Counsel for the pauper appellants concentrated on the fact that the original will of Venkataratnam, dated 13-12-1896 had not been produced in Court, and the will itself proved to have been executed by Venkataratnam in a sound and disposing state of mind. His argument was that though a registration copy taken in 1905, Ex. D.8, had been allowed by both sides to be marked by consent, the lower Court had erred in presuming the execution of the original will by Venkataratanam in a sound and disposing state of mind from the production of a copy Ex. D.8 more than thirty years old. He urged that this will was not proved to have been executed by Venkataratnam, much less in a sound disposing state of mind as it was executed on the date of his death. Mr. Somasundaratn, for the 1st defendant, relied on the ruling of the Privy Council in Munnalal v. Kashibai(1), wherein it has been laid down that where a will is more than thirty years old and is produced from proper custody the presumption that it is duly executed and attested, which could be drawn under S. 90 of the Indian Evidence Act, extended to the testamentary capacity of the testator also, since a will cannot be said to be duly executed by a person who was not competent to execute it, and that such a presumption was fortified by the provisions of S. 114 of the Indian Evidence Act and contended that Venkataratnam's will dated 13-12-1896, should therefore be presumed to have been executed in a sound and disposing state of mind as the attestors are all dead and the above presumption, which is intended for such a contingency, should be unhesitatingly applied as even the P.Ws had admitted that the attestors named in the copy of the will were all respectable men of status with no enmity or other motive against the plaintiff and as the story of some of the P.Ws that Venkataratnam, who was suffering merely from asthma, was unconscious for ten days prior to his death and so could not have executed this will in a sound and disposing state of mind on the date of his death, was unbelievable. The learned Counsel for the appellants urged that the presumption would apply only if the original will had been produced and not where only a copy more than thirty years old was produced, and not the original itself, as in this case. He relied on the ruling of the Privy Council in Basant Singh v. Brijraj Saran, (2). At pages 503 and 504, their Lordships of the Privy Council say. “In face of the clear language of S. 90, their Lordships are unable to accept these decisions as sound. The section clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S. 65 as secondary evidence, and it is produced from proper custody, and is over thirty years old, then the signature authenticating the copy may he presumed to be genuine, as was done in Seethayya v. Subramania Somayajulu(3); in that case the dispute was as to the terms of a grant which had admittedly been made. Their Lordships approve of the decision in Shriouja v. Kanhalal(4), in which the Judicial Commissioner held that production of a copy was not sufficient to justify the presumption of due execution of the original under S. 90, and they are unable to agree with the subsequent overruling of that decision in Shri Gopinath Mahraj Sanathan v. Moti(5). In view of the above ruling of the Privy Council we are of opinion that the view expressed by the Full Bench of this Court in P. Subramania Somayajulu v. Y. Seethayya(6) that the presumption under S. 90 of the Evidence Act with regard to documents 30 years old arises in the case of copies as well as originals, and that if a copy is proved to be a true copy a presumption may be made of the genuineness of the original itself, is no longer good law, though Mr. Somasundaram argues that it is good law. It follows that the defendant must prove the execution of the original will by Venkataratnam in some way known to law, at least by approved circumstantial evidence.

Mr. Somasundaram, for the 1st defendant, urged that, but for the plaintiff's not raising this point in the lower Court, he would have proved the execution of the original will by Venkataratnam by putting in certified copies of the depositions of the attestors regarding it when Surayya and Gopalakrishnamma, the two reversioners, objected to the registration of the will, when it was presented for registration on 19-2-1897, and by other evidence. He also urged that the recital of the execution of a will by Venkataratnam on 13-12-1896 in Ex. D.9 dated 15-5-1897, the agreement between Viyyamma and Surayya and Gopalakrishnamma the only two major reversioners then alive, Gopalakrishnamma being the then manager of the branch of the plaintiff who was then a minor aged 16, and in Ex. D.7, the adoption deed executed by Viyyamma, and the factum of adoption, and the living of the 1st defendant ever thereafter with Viyyamma, and the plaintiff's not daring to question the adoption for thirty years, and for seven years after Viyyamma's death would all raise a presumption in favour of the due execution of the original will by Venkataratnam in a sound and disposing state of mind especially in view of the evidence of D.W 5, albeit hearsay, in the light of the observations of the Privy Council in Basant Singh v. Brij Raj Saran Singh. We cannot agree. No doubt, the Privy Council has said in that case that where an adoption has been made publicly on the authority of a will and has remained unchallenged for a long period it may be presumed that the authority on which it was made was genuine. But it required, all the same, the execution of the original will by the testator to be proved by circumstantial evidence before applying that presumption, and refused to apply the presumption of due execution in a sound disposing state of mind by mere production of a copy more than thirty years old. So, we have to call for a finding on the two points mentioned below allowing both sides to adduce evidence that the original will dated 13-12-1896 was duly executed by Venkataratnam in a sound disposing state of mind and that the adoption was covered by valid authority. Of course, the 1st defendant is free to prove the execution of the original will, if he can, by circumstantial evidence like copies of the statements of the deceased attestors before the Registrar, recitals in Exs. D.7 and D.9, long acquiescence in the adoption etc.

Mr. Somasundaram urged that the ancient copy Ex. D.8 would at least prove the contents of the will once the execution in a sound disposing state of mind by Venkataratnam was proved. We agree. Else, an admitted and ancient copy will serve no useful purpose whatever.

He also urged that once the execution in a sound disposing state of mind was proved by him, on remand, this particular adoption would stand as the factum of adoption had been proved, and the will gave the widow the right to adopt a boy from a non-gnati family in case there was no gnati boy agreeable to her, and Ex. D.9 had only stipulated for the adoption of the second boy of Surayya or Gopalakrishnamma in case they had a second boy in ten years from then and had not provided for the adoption of any boy of the plaintiff, whose second boy was ten years old in 1915, but was blind of one eye and not agreeable to the widow on that account. We agree. We are not here concerned with the desirability of discriminating against one-eyed boys for purposes of adoption, or the willingness of the plaintiff to give his first son (with full two eyes) in adoption had he been asked, keeping the one-eyed boy for himself. The will relied on here as the authority to adopt, gave the widow the right to adopt a non-gnati boy in case no gnati boy was agreeable to her, and she was, therefore, free to adopt this 1st defendant since her subsequent agreement, Ex. D.9, did not also prevent it. So, this issue will not be left open for further decision.

3. Was the adoption of the 1st defendant valid by virtue of the authority of the nearest sapindas in Ex. D.9?

Mr. Somasundaram urged that, even apart from the will, this adoption would be valid under the authority given by the nearest sapindas, Surayya and Gapalakrishnamma under Ex. D.9 The learned Counsel for the appellants urged that that was not the authority relied on by the 1st defendant in the lower Court, and that his obections to that authority, like all the reversioners not being consulted and the agreement being vitiated by improper and dishonest motives, like the selfish gains stipulated for by Surayya and Gopalakrishnamma to the detriment of Seshayya and the plaintiff, had not been considered in full by the lower Court. He also urged that the adoption was made only in 1915 when the plaintiff was 34 years old and had two sons, either of whom he would have gladly given in adoption, and that at any rate, he should have been consulted by Viyyamma about the adoption, and his consent or refusal ascertained, before proceeding with the adoption especially when he was available in that very village. In these circumstances, we allow Mr. Somasundaram to raise this alternative authority matter in the lower Court, if he considers it fit, but give the appellants full right to let in all relevant oral and document evidence they like regarding that point.

The legality of the allowance by the lower Court of the application under Ss. 151 and 152 Civil Procedure Code and the consequent dismissal of the suit against the ex parte defendants also, need not be considered in detail by us. We are of opinion that if the adoption was valid, the decree against the ex parte defendants also cannot stand as the appellants will not have any right whatever to question the alienations of Viyyamma or the 1st defendant and the judgment will have to be consistent with itself. If the adoption was valid but the decree in favour of the plaintiff against the ex parte defendants still remained, those ex parte defendants, thus deprived of the lands in their possession, could have proceeded against the 1st defendant for damages, let alone the appellants getting lands and mesne profits they were not entitled to. So, the 1st defendant could have applied to the lower Court to modify the original decree by dismissing the suit against the ex parte defendants also, though, in our opinion, he should have put in a petition for review and not treated the petition as one under Ss. 151 and 152 Civil Procedure Code. The lower Court will treat his petition as one for review and collect the deficit stamp duty from the 1st defendant whose Counsel promises to pay it.

In the end, therefore, we direct the lower Court to give its findings on the above two points within a month after the reopening of the lower Court. Objections within ten days after receipt of the findings.

JUDGMENT (Delivered by Panchapakesa Ayyar J.)

The findings called for by us in our judgment dated 7th March 1949 have been submitted by the Additional Subordinate Judge, Cocanada,. He has found that the original of Ex. D.8, the will, was duly executed by the deceased Venkataratnam, the husband of Viyyamma, when he was in a sound and disposing state of mind, and that the adoption of the first defendant by Viyyamma is valid both by reason of the authority given by her husband under the will and the authority given by the two nearest sapindas under Ex. D.9 which he held to be valid and binding on the plaintiff. We see no reason to differ from his findings. We accept his findings. It follows that the adoption of the first defendant is valid, and that the plaintiff is not entitled to any relief either against the contesting defendants or against the ex parte defendants.

Mr. Satyanarayana Raju, for the plaintiff-appellant said that there was nothing in the findings to show that the court-fee for review had been paid regarding the relief sought against the ex parte defendants, as directed by us in our judgment. Mr. P. Somasundaram, for defendant 1, has assured us that this court-fee was paid even before the matter was heard for the purpose of the findings by the lower Court. We accept his assurance. It follows, therefore, that this appeal deserves to be dismissed. It is accordingly dismissed with costs. Appellants 2 and 3 are directed to pay the court-fee payable to the Government in this pauper appeal.

N.R.R