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Nagalutchmee Ummal v. Gopoo Nadaraja Chetty and Others (India)

Privy Council

Feb 7, 1856

Judgment

Subsequent
References

CaseIQ

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Case Summary — Extracted from the Provided Opinion (Gopoo Nadaraja Chetty [1856])

Factual and Procedural Background

The opinion concerns a dispute arising after the death of Appasooty Jyen (the deceased). He left substantial property and executed a Will and a Codicil shortly before his death (the Codicil dated the day before he died). The principal claim by the appellant (the deceased's widow) sought to challenge the respondents' administration of the estate and depended upon an allegation that the deceased had authorised his widow to adopt a son in the event that the child then in her womb was not male.

The respondents (including Chinnappauien and Gopoo Nadaraja Chetty) had been in possession and administered the estate. The appellant presented petitions (including to a Sub-Collector) and subsequently litigated in the Sudder Court at Madras; the Sudder Court refused relief and pronounced a decree (dated 27 November 1851) dismissing the appellant's claim. The appellant then appealed from that decree to the higher court whose opinion is excerpted here.

Legal Issues Presented

Whether the Will and Codicil executed by the deceased were genuine and valid (the appellant alleged forgery and incapacity at the time of execution).
Whether the deceased had given his widow a power to adopt a son for him (i.e., whether he authorised adoption in the event the expected child was not male) and, if so, whether that power could affect rights to ancestral property.
Whether, as a matter of Hindu law as applied in Madras, a Will or testamentary instrument could operate so as to dispose of ancestral property.

Arguments of the Parties

Appellant's Arguments

The appellant alleged that the Will and Codicil were forged or at least that their execution was tainted because several attesting witnesses were not examined; she raised doubts as to the deceased's capacity at the time of execution.
The appellant alleged that the deceased had authorised his widow to adopt a boy to succeed to the property if the child then expected were not male, and relied upon statements said to have been made around the time of the deceased's illness and death to support that alleged authorisation.
The appellant sought an order or relief based on the claimed adoption-authority and alleged that the respondents had acted improperly in administering the estate.

Respondents' Arguments

The respondents maintained that the appellant's right to maintain the suit rested upon the alleged adoption and that the evidence of any such adoption-authority was insufficient.
They contended that the Will and Codicil were executed by the deceased and were supported by the testimony of several witnesses who deposed to the signature, dictation and the deceased's mental capacity at the time of execution.
They argued that, as a matter of law and practice in Madras, testamentary dispositions of property which was not ancestral could be valid, and that the Will and Codicil should be given effect with respect to non-ancestral property.
They challenged the credibility and weight of the appellant's evidence, particularly the evidence offered some time after the events and evidence tending to rely on hearsay recollections of consolatory statements made by the deceased.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded in these principal steps, based strictly on the text:

Assessment of the execution and attestation of the Will and Codicil:
- The respondents produced several witnesses who swore that the deceased dictated and executed the Will and that he was of "perfect mental capacity" at the time of execution. The witnesses also deposed to having seen the deceased in the afternoon or evening of the day on which he died and to his state shortly before death.
- The court noted that while not all attesting witnesses for the instruments were examined, there was nevertheless "clear and satisfactory" evidence of their execution from the witnesses who were produced. The lower courts had no reason to doubt their genuineness absent clear proof to the contrary.
Evaluation of the appellant's claim of a power to adopt:
- The appellant's case relied on evidence that, during an earlier illness, the deceased had console-the-widow type utterances — statements that she could adopt a boy if necessary — and on later representations by female relatives that a power to adopt had been given.
- The court treated that evidence with scepticism: the alleged consolatory statements made at the bedside shortly before death were not, in the court's view, the language one would expect if the deceased intended to impose an enforceable power to adopt at his death. Such remarks were seen as consolations rather than formal or binding directions.
- The court found there to be an absence of direct and convincing proof that the deceased had in fact conferred a binding power of adoption on his widow. The representations by relatives and the subsequent attempt to effect an adoption were not supported by evidence "worthy of the least attention" on the crucial point that a power had been given by the testator.
On the interaction between adoption-power and testamentary instruments:
- The court emphasised that even if an adoption were subsequently or purportedly made, any claim arising from such an adoption would have to be decided on the evidence produced at that time; the present record did not allow the court to treat the alleged power of adoption as established.
- The court concluded that the Will and Codicil, being established by the acts and evidence of the testator, must take effect as to all property of his that was not ancestral. The real dispute remaining related only to the operation of the Will on ancestral property.
Credibility determinations and procedural observations:
- The court accepted the findings of the lower courts concerning the credibility of witnesses and the genuineness of the instruments, noting the time elapsed and the nature of native testimony but finding no sufficient reason to overturn the earlier conclusions of genuineness and capacity.
- The court declined to encourage the appellant's adoption-based claim on the existing record and indicated that proof of a valid adoption or power to adopt would be required before such a claim could succeed.

Holding and Implications

Holding:

The plaintiff's (appellant's) claim was dismissed and the Will and Codicil were upheld as valid insofar as they disposed of the deceased's non-ancestral property.

Implications:

The direct effect on the parties was that the respondents' administration pursuant to the Will and Codicil was sustained as to non-ancestral property; the appellant's contention based on an alleged power to adopt was not accepted on the present evidence.
The court made clear that the question whether the Will and Codicil could affect ancestral property remained distinct and would require specific examination; the opinion does not finally resolve that issue on the present record.
The court indicated that any future claim founded on an adoption would have to be decided on evidence then produced; the opinion did not endorse or create a broad new rule encouraging such claims on weak or circumstantial evidence.
No statement in the provided text indicates that the court intended to establish a novel legal precedent beyond applying credibility and evidentiary principles to the facts before it; the court expressly confined itself to the effect of the instruments on non-ancestral property and to the insufficiency of the adoption-evidence on this record.

Note: This summary reproduces and organises only information that appears in the provided opinion excerpt. No facts or legal propositions beyond those expressly contained in the excerpt have been added.

Show all summary ...

V I MWEE 1ND. A.W.. 309 YBGALUTCHMEG Z‘DIMAL

K‘oa, it “ppearr to their Lorduhips upon d i i r agreement very clear thrr after

the expi idt im of ten pearr the inrereat ib not to recui-ro the old ra te of txelve pet

cent.. bu t tu be reduced te tne nex rate of nine per oeri. under the stipulation hy

poring of onceSrral1* well 88 scquired estate.

Atter an appeal had been mserted from a decree of the Sudder Court at Medias,

iha lppe l l rn t applied to that Court, under Sec. 4 of Reg. VIII. Imf 1818, and

Tile Ciroular Order of 21sr September, 1826, for an order cal1.n: upon the

Rebpondznts. wlio had beer. in possession of the estitrs ir dmpu

.ns-iturion a f the s u i t , 10 g n e ieeuiity 88 presorlbed b s the Keg

Sudder Court reiused tile applic~iion a rmt bmlg withir the

rho Repla i ton . Upon perition the Judmal Comrnittte dcclined

ss there vas NO allegat~oil uf wa*!s

T h e - h e r there 1s au? p m 6 d t

& of Mad. Beg. TIII. of Wl8, to oaibfor ‘ecuriry f rom fha Reapandent nihn

Q m e w

116

i( GUPOO YADdRAJI CHETTY [le561 VIMOORE IND.APP, 111

and, next, if he had authorised his widor to adopt a e m for him in the event of the

child, of which his aife a ~ s then preqnant, not being B male child.

The facts of the oeie which gave rise to these queauon i were the*e:-

Appaeoatp Jym, the deceased husbsnd o i the Appellant, of Gorindacoody in the

presideno7 of Madras, w m the adopted a m of Rajsppier vtherwiar ariled I-eneataaa

Jyen, and vas the s ~ n e r of considerable property, both real and personal, partly

inhariiod from rhs f s d r into which t e hud been adopted, and ~ ~ n l ? a c q u m d by

himself. He he*d no mn. and on!^ one dau&ter. In the month oi Augurt, 11111, te

Purretce. v h o have been under ID? pmtrc

"hat may be r.scenaa7 for their household pwpo8es. a r d li,e togdber. The c h a r i r m

o i the Chaorrr Pspdn and other places ehdl he performed usual, arid B C C O U ~ T ~

rendered e i e q pear of all ieeeipta and dinburaenieiits to mp uncle Chiniiappryan of

Tscoovsroor m d :D Gopoo Xadaraja

w e n to the C I T ~ ~ G of m e rupee or one

their nuthant?, and en mmunt o i BUC

re$pectivel>- h nriiinp by my father. Thus do I ehrcule my Will." Thin Wili wns

u ~ m t i a e d by iix uitnesres.

A8 rhz shore T W l did not dererrniv the proport.ons nhich the f t m d e r e i m r e ~

%er(. rripeetwelp t o enjoy in esse tney xhauld disagree amonsit zI,en:d~ea, and

pieter t o liir aepara:e, the Tmtaior, (in tlic 3rd of 3epre.n.oei fol loinnp, the d a r

0 his WI!~ z u follow :-*' If mv d e , JTho :a

ih the paternal sun:= shall r&iw the ~ncon 'e

of tho londa left to them) during the i r lifetime, erd after :heir de'eaae their lnnds

!hall go t o :hat son. If a daogliter be born, she alro rhall hare 2 v a l m of land set

apar t to her out of the lands nov allotted for charitable purposes, and Ra. I000 shall

thai he had executed these instruments, and died on rhe 4th d S s p m b a r . the day

after the date of the Codioil, leai,ing the Appellant, his widow, and a daughter, fortr

years o!d, him sumiuing.

The Respondents. CTapoo

Padarsp Chettp and Chinnappauien, administered the estate aooording to the t e r C l ~

117

The Appellant afterwards paw birth to a dnuglter.

j18561 YI MOORE mu. UP.. si?

and denled :he m,iel;rcnt ~n her reply regarding B petition GO ihe bubSol ie i tur , iu

:heir havlng hem mpaiately aaked tliree or f n v rnor.th3 after t h e death of Appa

Jyen by Chinnappauien, ,n the preaeiioe of Uopoo Nadarajh Chetty end se

other persooi. to a t t m what purported to be B 7Vlll and Coriicil af the derreaed. v

Eemalsa. if tliey wi-hed ir, might make it themelve8 Vpon thii rbe fenrnlea :old

them that A p p c a o t y $yen had authorized rBem TO idapt a boy in the event O X his

wife rlot givu~p birth to B e m , end that he m d Chinr-apparien redied rhat r f s n ~ h

s a i the case the). might adopt 8 boy. The Appellant, houerer. subkquently rcfuacd

t o make the adoption. and tlie mothei and great-grsndrnotiier of

auggested t h a t 8 s disputes azirted amongst the ferrmler. if -he?

Appseooty Jyen bad permitted an adoption, 811 order would be passed for makinc

one, rhieli nould put a "iop to tha quarrel. and they, the-efare, made tlie etateqLelc

nhaut rhr adaotion. Another of the Defendnnra "BY BIEO euammed on the I_mlr ~.

subject, and -aye a siiiiilar erplanntion.

T1.e Res&deuts' witnesser proved thm ApFmootY Jyen. while in full pohxres~on

of his fociltiea. eneouied the Will, and two or three dsya rfterwordi the Codicil in

question. en3 tliat m r r word was said about sdopliori. it was also proved thut

continned senlibie mril a few hourr before his dcotlr. The Aeauordents &O

in eridtliee B petition presented hy the Appellnnr to tlie %b-Coll&or 10 FrErusrp.

119

IE16, ~n u h c h she had stated 8s follou*:--"Bzing deatirute of brothers oil other

kinsmen, dppacootp [319] Jgen rntiiixt,ed the whole o i his property, moluding ready

cash. o m a m e m , and bands, to one Nsdala Setty, 80n of Gapes Sett?, oi Cornbacoiiuiri

Pettah, who iron t i e d a p of his (petiticmar'x hiirbnnd'si ancemors lrad maintained

a truRtwortlip and re.rpactable ohoiaozer, and he e n p n e d him srd the agent atid

a urn urn of hi& villages not t o deoewe rhe Pelifxonei in consequence of lie? dei , bue

faithfully t o manage the entire eqtater, and rertore the ~ a m e t o he- on t.er demand.

-- have no doubt that the Will. end Codicil CO it, were eseouted by t l ia deceased,

and that he xai in the full possession of his ~eiiaei &t l e tine. These documams

are atceded by several psi'emis of repeer p. end their evidence TO rhe point is

dear , and for the most p&rt usehoeptioi The firm Defendmt aim, nho, BE

T ~ D old [321] friend of the family, IS appointed me of tto ereontors, _e himself

120

1'. GOPOO AAD4RdSA CHETTY [1856] V I MOOBE IND. U P , I 1

P,epnrntiom uelie accordineh nsde for the affiliai:on, and the ceremony a d d here

taken place but for the interference of the Pleintiffs mozhher and uncis. who nersusded

Per, thnt if Bhe ednptrd boy. arleeted by the relations of tlie deoeased. 'she r a u l d

hare no emtwi aver the pmperty, and so the affair vas broken aE. The objocr of

the sibaequert petition to the Sub-CJiieotor "as t o Coiward ilia adoption. under the

impre~sinn that ic ~ 8 8 the only m e ~ w to put D stop to tlie quarreir that had ~ O K

sprung up betreen the wornan.

' j Ths explanation 18, af couree. open to ohjeatron, but 1 a m

88 B prabahle soiuiion of the Ciicvmstaness under which thew t

and 1x1 the ab~ence of any other eyidenoe t l s t 08." be relied

them ae suffioieni proof that +e deceased h f r hehind him a rp injonrtioni. to zdopt

8 a m , and I ~m of opinion thbt his ;art aishei and intentions are contained i n Ihe

Will and Ccdicii t o it, and I, therefore, dismiss t t e Plaintiff's claim uitli coi:~."

Tile Apieiient appcaled from this decreet

her peririon of "ppeni she for the firlt time

Codicli yere drogetirer void, ,under Regubt

[a241 The Respondents In thnii i n s n w ohj

an adr~ption she -8s not competent to main

thst a b p t m n and heard the B p p d

The Sudder Court promuneed its decree on the 27th of November, 1851 In

daiissriiig jildgoiant, the Court eatd:-''Wic.? regard t o ihs Irst poinc nrped by t'ie

Appellant thai the Will and Codicil m e forged documents. the Couit w u f c observe

Vl XOORE IND APP ,311

that dit ex-idenee to their eraoution is dear nnd satisfe.ctwy it 19 true, as pleaded

bv the Appellenr, that all the attratiiig w i t n m w v e ~ e not dted and euemined, but

KAGALUTCHMEE OMM4L

t a the first, and Sre to t!ie second an he Triter of bath “ere eo

p and :ncantrawr!ibiy

VI MOORE IAD APP. BW NALALCTCHMEE U>li14L

3001, hse nothing ?a do vith auch en applxntion 8 8 thir, BB their Lordehips an that

L**e only ordered t h e n decree t o be sffectuallj oarr id into effect by the Court in

Iodie.

c . GOPOO PADARIJA CHETTT [1656] VI MOORE IND. APP., sac111

snd mniovabie property, as she takea before tne daughters, 1 Strange's "Hindu

Law.'' p. 133, i i e e r n t Sirg 1, iisulahul Szny ( 2 Ilaorc'e Ind. App Casea. % I ) , Cossi-

amzLh B,vsurl i. lfiirraawndrr.) Dosaec (hlui;oii'a Dec. 86).

Mr. Wigrsm, Q.C.. and Yr. Forsyth, for the Rsapandents.-First. The ri t lu of

tlie Appellant to nlaintaili th i s suit is founded up00 1Be alleged adoption. K o r ,

vhp the Will of II Hindoo deviairig ancestral estate should not be ireated 8% B convBli-

m c e . It IS of little importance hp what n ~ m e the instrument or dederation dy

125

Y l BIOORE IHD BPP.. 916 P(AGI.4LUTCHXEE UMXAL

the e x r l u i h of f i e

J Lloyd, in iipl~.-Ii IS inconsidrent with. and repugcant to. itir apirit

ndoo lav rhieh is in iorea at Ysdras. t o a i h a ~ u o l i B tastrmenrnry dis-

The Hisht Bun. T. Pemberton Lea& (April 3, l85G).-Tne question to be decided

in this case is ths right of ~ ~ c o e i d i o n to the pmpeity, rno~ahle and imnmrnble,

Lordship intma:ed at t'ie hearing, that they could not upon this record pronounce

any direor decision It 18 silesed by die Appeliant in her plaim, that her husband

enpined her, in the event of the ohild aith ahiah ahe -88 pregnmt, at hls des%,

126

v GOPOO TAnARAJI CXETIY [185G] VI MOORE IND UP.. 999

'The n(Bm8otioni ~n respect of ahich en imputa:.on 1% attempred CO be naai

Chinasppauzen, sppeaia to their Imdrhips fully explained.

The Will and the Codicil are artested, thc hret 13411 br m e n . the latter by ten

aiinesaea, rncludiiig ihe individusl r h o m o t e lbem i many of those ~ i t s e ~ ~ e ~ tiiougi,

not ail. hme been **mined i the7 are several of i h m of s c 1 m mperiur t o rdat from

ahich Hindoo testimony generally proceeds; their eridence wema open to no ,,&her

137

V I XOORE lm, UP, $4

objection than mar leasonably be accounted for from the iength of rime which had

elipard batncsn the date of the trailaaetlona deposed to, and the period ahen the

witnesses were eiamined, and there 818 not wanting incidental cireumataiioes

noticed ii j tbe argument at the Bar, ahirh stron@y confirm the aocurncp of the

accounts uhieh they p v e . Now these aitnezsser, oiie and aU, dcpose to the fact of

the signature of these paperr, to rlieir bein8 m i t t e n irom the dictation of the Tea-

tator, and to his perfect n m t n l cap&nty at the time ahen they nere executed.

Bgnma thia tesrirnoni. there is rcallj, i h r n it conlea to be examined, no enderme

nhaterer. Three aitnesres are called, vho say that they BBW the 'l'eetntor in the

afternoon 01 ereiiing of the dav on iilurh he died. and one says he was then inren-

sible. and that he, the witnes;. UBR told that h c had been insen~iblr ior ren or

filteen d a p anorher ~ p . e n i s . thac w h e n h e ~ e i v the Teatstar he RBS not miensible,

!or he say% that rhe Testaror desired the a imcm to fed his pulse, who did 30, and told

him h a t he rould come snd feel it again when the fever had abated. t l i e third says.

that nhen Le cailed to see Appamary Jyen, beineen two and three in the aiiernoon,

he wag lying meechieis, a i d i t a t the wituesx PBS told by Chinnepparieu that he had

hern insens& f a r several deys. Thri [sna] the Testator beearns hilseusiblr 6one

hocra before his death, rhioh occurred I" the evening of the 4th of Septornbw. is

stared by the Reapandenta' nitneeses, acd not one of t t e Appellsnt'a riineases aaeets

to say that he had m y parsonni koauledgs of the m t e of the Teetator at t h e time

niien either zhe yid1 or the Codicil IWI executed.

The widsnoa oi two witacsies. ,vim state that they were inuned to stiest -here

inriruiiiinti aiter the death of t i e Testator, 18 wl~olly unworthy of credit, and has

'bow treated by the Judge8 in the Court below wit12 p p z r disregard.

There appaais, Lhairfme, not the alightet remm for dissenting from the opinion

of the J.ddges :D the Court bsioa, sin had. both in the Zillnlr and the Suddrr Couit,

men ratiseed af ille ge:~ineiii.aa of their mstrnnent., unless LT c m be iound on ciaar

prcof of tic poarr o i adoption and ths inconsistency of such power a i th the tomenfa

of these instrumenrs.

There i s no doubt

t h a . a t mrne time after the Pertetoh death, t n t female relatirei of the Tea-atjr

reprerenred that a power had been given by tiie Testator to the r i d o r to adopt B

boy d their iamily, and that the trueiees, biliev.ng it, had aiahed eurh adoption to

'be msde, and that tile mdow reiuaed to make I t ; hut of widenoe t h a t mw such

power x a s really given by tho Tesiator, h e r e i s none worthy of the leaat atre&n.

The a!legariun in the piailif by rhe Appellant $6, "that ~n the early part o i the

nmnt!. of A u w c 1844 vhen the am q h t months pregiimt with a record child,

her lrusirsud gad e& aftaek of [343] fever and ague; aiid m order that he niiglit

B ~ ~ L ~ P B E in the next rarid. he autharmed her. in t i e premier o f reitaiii

to adopt a bay to be ahaien by herself, in the erelit of her expected child

O ~ L a gxrl." This reirgioua Errling i s EO much jn aceordame wit2 the tenet6

an pierailing ieitiments of Hmdaor, that the atatenie

of im)robabziity. But, when the eriderice is referred to

C ? B I S C T I ~ irom that ahieli iiir piaint ellegea. I t consists

hearing the Teamor say, by way of consoling h a widon.,

at rhc pmsperr of his dmth, that m e rhouid not be so much griwed; th&t she nould

I r a d x e a. wn, md, i f not, $he could idopt one. Serely chxs 16 not zhe language

rhieh nould he used by 8 permon who, on ahe pm8pect of death. with a ~ i e w to tile

aslritiiln of his soui. w88 at that moment laying injunotionr an his widom for the

periormance of B nalemn and important durp I t IS not nereassiy to impute piijury

:U the a,itnessea; they are speaking after the lapee of BCY~T&I yean to aards which

er had forgotten, if ~ ~ i o h wards erer w r e used at all,

ouid not have been intended to - w e the suthantv but

inp either already done. or t&esfter t o he do&, by

the Teitator

TLc qwit:on at present only i s , diether their Lordships can say ths r t h e midenee

88 to the power af adoprioii LB 80 S W ~ E 8s t u induse them, upon tha t ground, ia

diebelieve tbr testimony in farour of the Vill and Codid, n h x h oenainly are not

[344] very m i d i t e n t with it. Their Lordships o m o o m ta no such oonclumon.

If ~n adoption hen been 01 should he made, and "p olsirn should be sdranoed by t\e

128

NAOALCTCXYEE U!vlXhL

Bur their Lorddips heye sougilt L:L vsm ior m y such proof.

U , QOPOO NADARAJA CHETTY [1856] V I XOORE IND APP. W

p e i m ~ adopted, sudi claim will have to be decided upon the sridenoo shioh may

tiien be produoed. It 18 rufficient f o r the prenent purpore to aay that t h e i r Lord-

ships du not mean in the smalleat deyree to irrvite or to encourage 8117 such claim.

The '.Till end Codicil being ostabliahcd &B the acts o i the Testator, muit, niiriiout

doubt, rake effect 8 8 to all propert? of h i x not ancestrsl, the quaaiion is on17 as :U

their operation on that which i i &nceCtrd. and this, in truth, is the only porm uipii

d-hich any reeaonabla doubt c&n br rsised

It &t be alloaed that in the ancient IIindoo lew, aa i t v a s undermood tlirou

the whale of Hmdaacan, reetamentar,= mstruments, in :he eeme affixed by Engl

l a m y e n t o ihar erpreasion. were unhnosin, and it 16 stated bp & r r i ter of suthor

tmv dirpme oi it b Will 8s h e pleasaa. wherher it be ancestral or not. This point

vas reaoired sereral years 880 by the conouiren~e o f all it.a judioial authorit.es i n

Calcutta. 86 veil of the Supreme R B oi the der Courr. Xo [345] dmb% the iav of

Jladrae differs in 80me reipeets, and, &L c t oihers. r i t h ieapeot to Wills. from

that of Bengd. But ere" in Madras i t i led thst d Will of property. not BIICPR-

t r d . m a j be g o o d ; n deoimon to thie effect hss been r e i u p i r e d and cctod .upon by the

Jirdicial Conrmirtea. and. indeed. the rule of lan to that extent ii not dirvuted in

I39 6