Judgement

P. KODANDARAMAYYA, J.:- The ancient rule of divesting an absolute estate of Hindu widow on adoption is sought to be resurrected in this appeal.

2. The Ist defendant is the appellant in this appeal. The respondent-plaintiff filed a suit for declaration of the title to the plaint schedule property and also for injunction or in the alternative possession of the plaint schedule property. The relevant averments in the pleadings may be stated for the purpose of this appeal as the pleadings reveal number of proceedings between the parties which may not be necessary for us to notice. According to the plaintiff her husband executed a will on 7-4-1924 bequeathing absolutely the entire estate of his. Under the will she was also given the power to adopt. She adopted the Ist defendant on 28-11-1945 and the Ist defendant was a major on the date of adoption and prior to adoption as per agreement dated 24-11-1945 she kept the property shown therein as A schedule for her exclusively, and gave B schedule property to the Ist defendant and the Ist defendant had gone into bad ways and spent the entire property given to him and wanted to grab at the property in possession of the plaintiff and creating mortgages and making alienations high-handedly of the property of the plaintiff and even threatening to dispossess the plaintiff and there are criminal proceedings also in respect of certain items of plaint schedule property and hence the suit for injunction and also possession in the alternative.

3. The Ist defendant resisted the suit saying the will set up by the plaintiff Ex. A-1 is not true. The true will was suppressed, the plaintiff did not get absolute estate under the true will of her husband, he was a minor at the time of adoption and he was not a party to the alleged ante-adoption agreement Ex. B-107 and it is not binding on him and it does not constitute a valid conveyance and the reservation of A schedule properties in favour of the plaintiff does not create any right much less an absolute right and since the date of adoption the whole is vested in him and he alone was in possession of the property in spite of the alleged adoption agreement and the plaintiff has no title or possession within twelve years and the suit is barred by time and the same is liable to be dismissed.

4. This is a typical illustration how the institution of adoption has become so corrupt giving untold misery to the adoptive parents fully justifying the Legislation curtailing the rights of the adoptees.

5. The court below on the relevant issues found that the will of the husband of the plaintiff Ex. A-1 dated 7-4-1924 is true and it conferred absolute title on the plaintiff and the ante-adoption agreement pleaded is true, valid and binding on the Ist defendant and there is no material to show that the deed was drafted without the knowledge of the plaintiff and the property was given absolutely under the ante-adoption deed to the plaintiff and even if a limited estate was given the same was enlarged under Section 14 (1) of the Hindu Succession Act and she became the absolute owner of the property of A schedule given under Ex. A-1 and the plaintiff has title and possession of the plaint schedule property except item 8 and the suit is within time and in view of the criminal proceedings and also the attitude of the defendants a decree was passed for the injunction and also for possession of items 1 to 6 of the plaint schedule. The claim of the plaintiff to item 8 that was not mentioned in Ex. A-1 was negatived. Against the said judgment and degree Ist defendant filed this appeal.

6. The learned counsel for the appellant argued three questions before us:

1. On adoption of the Ist defendant, the title of the plaintiff was divested and the adoptee has become the absolute owner of the entire estate.

2. Under Ex. B. 107 the plaintiff was given a limited estate for enjoyment for her life and the suit for declaration for absolute title is not maintainable.

(3) The property given under the ante-adoption agreement is outside the purview of Section 14 (1) of the Hindu Succession Act and the limited estate is not enlarged.

7. The learned counsel for the respondent-plaintiff refuted these contentions and urged that the plaintiff obtained absolute title under Ex. A-1 and the same is not divested on adoption and what was given under Ex. B 107 is an absolute title and even assuming the limited estate was given it is enlarged under Sec. 14 of the Hindu Succession Act.

8. The court below found that Ex. A-1 is true and on the terms of A-1 absolute title was conferred on the plaintiff. The testator of Ex. A-1 is a sole surviving coparcener. The validity of the bequest under Ex. A-1 is not challenged. But what was contended by the learned counsel for the appellant is that the absolute title given under Ex. A-1 is divested the moment the adopter took place. It is difficult to hold that the title once vested in a person on the death of testator will be divested on adoption. The disposition by a will is not affected by the adoption for, the will speaks as at the death of the testator and the property is carried before the adoption takes place. In the well known case of the Privy Council Krishna Murthi v. Krishna Murthi, AIR 1927 PC 139 Viscount Dunedin, J. observed

"When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the deposition is by will and the adoption is subsequently made by a widow who has been given power to adopt, for the will speaks as at the death of the testator, and the property is carried away before the adoption takes place."

That was a case where the validity of an ante-adoption agreement and a will made by adoptive father was considered and it is also necessary to note that it is not a case where the entire estate was given under the will but only a portion of it was given.

9. In Krishnamma v. Lakshmsnarayana, AIR 1928 Mad 271 where the entire estate was given to his wife by a testator absolutely and a power of adoption was given the question arose whether on the adoption the property vested in her absolutely will be divested. Phillips, J. and Srinivasa Aiyangar, J. delivered concurrent judgments holding that the bequests of an absolute estate to the wife shall be treated as provisional when she exercises the power of adoption given under the very will. On the construction of the will Phillips, J. held "It seems to me that we must therefore read into this will by necessary implication a provision that if an adoption is made by the widow, who is given a free choice such adoption should be to the estate of the testator which was until then in the enjoyment of the widow. She was allowed to choose whether she would have an absolute estate and make no adoption, or else adopt a son to her husband and herself who should enjoy the whole property." Srinivasa Aiyangar J. who delivered concurrent judgment held that "There are no words or expressions in this instrument to indicate any intention on the part of the testator to divest the widow and vest the property in the adopted son on the adoption being made. But the point to start from with respect to a Hindu testator giving his widow permission to adopt is that the adopted son should as far as may be in the same position as a natural son, that is to say, perform his funeral and other ceremonies and take his estate. A Court of law can recognize an adoption only for the purposes of succession to an estate and not merely for the performance of ceremonies. I for my part am not sure whether an adoption can be held valid if there is no question of any inheritance to property". Finally he summed up stating "It seems to be clear that the bequest of the estate to the widow with absolute powers should be regarded only as a provisional bequest subject to the exercise of the power to adopt given by the will." The same question arose again before a Division Bench presided over by Phillips, then Officiating C. J. and Reilly J. in Sukhdevdoss v. Mt. Choti Bai, AIR 1928 Mad 118 where the learned Judges expressed divergent views. That was the also a case where the entire property was bequeathed by the husband to the widow absolutely and subsequently she adopted a boy. It was argued that bequeathing the entire property absolutely constitutes a prohibition to adopt but that was overruled and held the adoption was valid. The adoptive mother having adopted the son gave the whole property she got under the will under an adoption deed to the adoptee but subsequently field a suit for a declaration that she is the absolute owner of the property and the attachment of the property by the third party on the basis that the adoptee is the owner is not valid. The single Judge Kumaraswami Sastri, J. declared that the adoptee is the owner is not valid. The single Judge Kumaraswami Sastri, J. declared that the plaintiff is the absolute owner of the property under the will and the creditor of the adoptee cannot attach the property. On appeal by the attaching creditor the Bench delivered the judgment expressing different views though in the conclusion it upheld the title of the adoptee on the basis of the ante-adoption deed. Phillips, Officiating C. J. held that the adoption was valid but observed "and if my learned brother is right in holding that the adoption did not divest the widow of her absolute estate. I agree with him that the estate has now vested in the adopted son by reason of a deed executed by her - Ex. No. 3. I am, however, inclined to think that, although the widow held an absolute estate from her husband, the adoption of defendant I would have the effect of vesting that estate in him." Accordingly it was held, "the Privy Council in Krishna Murthi v. Krishnamurthi, (AIR 1927 PC 139) (supra) has not drawn any distinction between a devise to a widow and devise to a third party but I think that some distinction has always been recognised between the two in considering the effect of an adoption." He further observed that "When a widow succeeds to a widows estate on the death of her husband who is the sole member of a family she is divested of that estate by adoption and it seems to me that no distinction can be drawn between the divesting of a widows estate and the divesting of an absolute estate. By adopting a son the widow realises that son will be relegated to the position of a natural born son and will have all the rights of such a son. If this notion is accepted, the son would take the whole of his fathers estate as it was at the time of his death. The exception grafted onto the Hindu theory of adoption that bequests to other people by will are not affected by the subsequent adoption appears to be based upon the theory that the father before the adoption was in a position to make effective gifts and bequests and that such disposition should not be disturbed by the intervention of the widow in making an adoption, that is to say, that the rights of property obtained by third parties are not to be defeated by the mere will and pleasure of the widow. "Reilly, J. took the view that the adoption cannot divest the property which has vested in the widow. He held "That her adoption to be valid must nevertheless affect some property, vested in the widow or in some one else is a proposition for which no direct authority has been produced and which in my opinion does not necessarily follow by implication from any decision which has been quoted before us." An accordingly he held, "My view of the case is that the plaintiff validly adopted defendant 1, although by the adoption itself she was divested of no property and defendant 1 was invested with none." But he held that in view of the ante-adoption agreement the whole property of her husband which she took under the will was transferred and as the adoption was valid no objection can he maintained that the gift to the adoptee was invalid, and on that ground he upheld the statement.

10. Subsequently a Division Bench of the Madras High Court consisting of Rajamannar, C. J. and Venkatarama Ayyar, J. in Lalitha Kumari v. Raja of Vizianagaram, AIR 1954 Mad 19 noticed these two cases and distinguished Krishnamma v. Lakshminarayana supra holding that the divesting of the estate in that case was on the construction of the will and also dissented with the view expressed by Phillips, C. J. in Sukhdevdoss v. Mt. Choti Bai, (AIR 1928 Mad 118) supra. Rajamannar C. J. observed referring to Krisrnamma v. Lakshminarayana, (AIR 1928 Mad 271), "It is not for me to say if the learned Judges were right in the construction they placed on the will. But I certainly protest against any one relying upon the decisions as authority for the proposition that whenever a widow makes an adoption the is divested of the absolute estate which was bequeathed to her under a will made by her husband which was otherwise valid and which he was competent to make." Adverting to AIR 1928 Mad 118, (supra) he observed, "Phillips O. C. J. was inclined to think that though the widow held an absolute estate from her husband by virtue of the will the adoption would have the effect of divesting her of that estate and vesting it in the adopted son. Referring to the observations of the Judicial Committee in AIR 1927 PC 139 supra, extracted above, the learned Judge remarked that some distinction should be made between a devise to the widow and a devise to a third party. He further thought that no distinction can be drawn between the divesting of a widows estate by an adoption and the divesting of an absolute estate by an adoption.

With great respect to the learned Judge I cannot accept either view of his, and certainly I cannot subscribe to his view that by making an adoption the widow must be presumed to divest herself, of her absolute estate of her own free will (emphasis added)."

11. Recently this Court in Lakshminarasimham v. Rajeswari, 1955 Andh LT 234 : (AIR 1955 Andh Pra 278) without referring to the later judgment of the Madras High Court in Lalitakumari v. Raja of Vizianagaram, (AIR 1954 Mad 19), supra, distinguishing the earlier two earlier two judgments AIR 1928 Mad 271 supra and AIR 1928 Mad 118 supra held that the property obtained by a widow absolutely under a will cannot be divested on her adopting a boy in pursuance of the authority given under the very same will. Thus the principle is clear that when the property was carried away before the adoption takes place the title cannot be divested and the adopted son shall take subject to the provisions of the will. Further in view of the clear dicta of Viscount Dunedin J. in AIR 1927 PC 139 supra it is difficult to make an exception to the rule that once the property is carried under the terms of the will before adoption takes place, the title cannot be divested. No exception is made to this rule when the bequest was to a stranger or bequest was a part of the estate. But we cannot make an exception in the case of bequest to a wife even if the entire estate is given. Though there is some conflicting dicta on this question, the preponderance of the authority is in favour of the view that when a Hindu disposes of his property by a will giving an absolute estate to his wife the disposition is not affected by a subsequent adoption by the widow as the will speaks as at the death of the testator and the property is carried away before the adoption takes place. The dicta of Rajamannar, J. referred to above is never doubted and accepted by this court for over three decades. We cannot resurrect this doctrine over again. Further after 1956 the Hindu Adoptions and Maintenance Act 78 of 1956 solved this problem by laying down an express and explicit rule that the adopted child shall not divest any person of any estate which vested in him or her before adoption.

12. It is not disputed as per the terms of Ex. A-1 the absolute title was conferred on the plaintiff and hence we are clearly of the opinion that the subsequent adoption would not divest her title and the adoptee must take whatever was given to him under the ante-adoption agreement.

13. The second question relates to the construction of Ex. B. 107. Before construing the terms of the deed it is necessary to advert to two aspects. The Ist defendant claimed to be a minor at the time of execution of the deed on 24-1-45. The Court below rejected this plea and the same was not canvassed before us and we see no material to disagree with the conclusion of the trial court. The plaintiff pleaded that the original terms of the deed in Ex. 107 conferring absolute title on her were struck off without any notice to her. The document was a registered document and the court below held that it is difficult to establish at this distance of time that these corrections were made without consent. We have seen the document. Though the corrections are made, the original text is still visible and it is difficult for us to take a different view from that of the trial Court and hold that the corrections are made without the knowledge of the plaintiff and hence we must proceed with the construing of the document as it stands now. The relevant clause in the document as follows:

(Matter in vernacular omitted - Ed.)

In respect of A-schedule property allowed to continue in possession of the plaintiff, it is not stated whether it should be enjoyed absolutely or with a limited estate and hence taking into account that B-Schedule property was given absolutely to the Ist defendant it was argued by the Ist defendant that the plaintiff was given a limited estate. We think that this construction of the document taking into account the context and the rights of the parties is wholly incorrect. We have already held and it is also not disputed that on the date of Ex. B-107 plaintiff is the absolute owner of property. The adoption took place four days later i. e. 28-11-1945. The words used in respect of A-Schedule properties are: (Matter in vernacular omitted-Ed). i.e. she is keeping the A-Schedule property herself. She is already the absolute owner of the entire estate. There is no need to confer an absolute estate on her so far the property kept in her possession. It is only by virtue of this agreement which is clearly an ante-adoption agreement the absolute interest is created in favour of the prospective adoptee. So we are clearly of the opinion that the absence of the words "conferring absolute interest" as in the case of B-Schedule properties is not fatal and such words will be really superfluous and clearly unnecessary. Hence the contention that the omission to confer an absolute estate makes the estate a limited estate is clearly untenable and we are clearly of the opinion that the mere keeping of estate of A-schedule in respect of which she has got absolute title is enough and she cannot be divested of this title by subsequent adoption.

14. Once we hold that the plaintiff is the absolute owner and keeping the A-Schedule property with her has in no way restricted her estate under Ex. B 107, the question of enlarging the estate under Section 14 of the Hindu Succession Act would not arise. Hence we are not examining this question raised by the appellant.

15. For the foregoing reasons, the appeal fails and the same is dismissed with costs.

Oral leave to appeal to Supreme Court refused.

Appeal dismissed.