1. This second appeal is filed against the decree and judgment dated 25.4.2003 passed by the I Additional District Judge, East Godavari District, Rajahmundry in AS No. 4 of 1999.
2. The defendants are the appellants. For the convenience sake, the parties will be referred as “the plaintiff and the defendants”.
3. I have heard Sri Prabhala Rajasekhar, the learned Counsel appearing for the appellants/defendants and Sri C. Subba Rao and Sri M.S. Ramachandra Rao, learned Counsel appearing for the respondents.
4. The short facts required for considering the present second appeal may be stated as follows:
According to the plaintiff, plaint ‘A and B’ schedule properties are the self acquired properties of late Boddeti Appanna. The plaintiff is the daughter's daughter of Boddeti Appanna. The mother of the defendants 3 to 7 and the second defendant are the daughters of Boddeti Appanna. Boddeti Appanna died 25 years prior to the filing of the suit intestate leaving behind him the first defendant, second defendant, mother of the defendants 3 to 7, plaintiff and Boddeti Gangamma, who is the wife of Boddeti Appanna as his legal heirs. The mother of the plaintiffs and the mother of the first defendant pre-deceased their parents. After the death of Boddeti Appanna, his wife Boddeti Gangamma used to manage the plaint ‘A and B’ schedule properties and used to give the share of produce to her daughters, the first defendant and the plaintiff. The first defendant was brought up and fostered by Boddeti Gangamma and he used to assist Boddeti Gangamma in the agricultural operations. Boddeti Gangamma died 10 years prior to the filing of the suit intestate leaving behind her, the plaintiff, the second defendant and mother of the defendants 3 to 7 as her legal heirs. After the death of Boddeti Gangamma, the plaintiff and defendants have been in joint possession and enjoyment of the plaint ‘A and B’ schedule properties. After the death of Boddeti Gangamma, the first defendant was managing the plaint ‘A and B’ schedule properties and he managed the properties as such for 8 years and with the income from the plaint ‘A and B’ schedule properties, he purchased the plaint ‘C’ schedule property. Thus, it is the version of the plaintiff that the parties to the suit are co-sharers and the plaintiff has ¼th share in the plaint schedule properties. When the first defendant stopped giving the share of profits to her, she got issued a legal notice to the first defendant demanding partition of the schedule mentioned properties from the first defendant, who received the same and did not choose to reply. It is averred by the plaintiff in the plaint that the first defendant has been proclaiming mat he is the adopted son of late Boddeti Appanna. But the said fact, according to her is not correct and the adoption, if any, is not valid and binding on her, as it was not acted upon. She further submitted in the plaint that the alleged adoption deed, if it is in existence is not a valid one.
5. The defendants 6 and 7 remained ex-parte. The defendants 1 to 5 contested the suit the first defendant filed the written statement and the defendants 2 to 5 adopted the written statement by filing a memo in writing.
6. The contention of the defendants 1 to 5 as it would appear from the written statement filed by the first defendant is that the name of the first defendant is Boddeti Suryanarayana and not Suresetti Suryanarayana as mentioned in the plaint on 22.3.1956 Boddeti Appanna adopted the first defendant under a registered Adoption Deed and the first defendant is the adopted son of Boddeti Appanna. Plaint ‘A and B’ schedule properties are ancestral properties of Boddeti Appanna. Boddeti Gangamma never cultivated plaint ‘A and B’ schedule properties and she never distributed any share of produce either to the plaintiff or to defendants 2 to 7. The first defendant purchased the suit schedule property with the amount derived by selling away the gold ornaments of his wife and thus, the plaint ‘C’ schedule property is the self acquired property of the first defendant Since the first defendant is the adopted son of late Boddeti Appanna,. after his death he became the absolute owner of the plaint ‘A and B’ schedule properties by virtue of the adoption. Whereas, the plaint “C” schedule property being the self acquired property of the first defendant, the plaintiff is not entitled to claim any share in the plaint ‘A, B and C’ schedule properties.
7. The issues which were dealt with by the Courts below are:
(1) Whether the plaint ‘C’ schedule property is the self acquired property of the first defendant?
(2) Whether the first defendant is the adopted son of Boddeti Appana?
(3) Whether the plaintiff is entitled for partition of the plaint schedule properties?
8. Before the learned trial Court, the plaintiff was examined as PW1, also examined another witness as PW2, and marked Exs.A1 and A2. The first defendant was examined as D.W. 1 and defendants marked Exs.Bl to B3. The learned trial Court upon considering the entire evidence on record found that nothing had been stated by PW1 or PW2 that the plaint-A schedule property which is a house fetching any income. Their evidence discloses that the parties to the suit used to cultivate the plaint-B schedule properties jointly, after deducting the expenditure for agriculture, they used to share the income. Therefore, it cannot be said that the first defendant purchased the plaint ‘C’ schedule property with the income derived from plaint ‘A and B’ schedule properties. The learned trial Court, therefore, accepted the contention of the first defendant that he purchased the plaint ‘C’ schedule property under Ex.B2 in his name by selling away the gold ornaments of his wife and also with his own earnings. The said finding of fact in regard to the ‘C’ schedule property arrived at by the learned trial Court was confirmed by the first appellate Court taking the same view. Therefore, there are concurrent findings of fact on the issue that the plaint ‘C’ schedule property is the self acquired property of the first defendant.
9. On the issue of adoption, the first defendant filed Ex.Bl-registered Deed of Adoption, dated 22.3.1956 executed by Boddeti Appanna and claims to have been adopted by Boddeti Appanna under the said document it was argued before the trial Court by the plaintiff that in the plaint the age of the first defendant was mentioned as 57 years by 1992 in which year the suit was instituted, if that is so, the first defendant was aged 21 years on the date of adoption. As per Section 10(4) of Hindu Adoptions and Maintenance Act, 1956 which came into force on 21.12.1956 the adopted son must not have completed the age of 15 years on the date of adoption unless there is a custom or usage applicable to the parties prevailing in the community, which permits the adoption of a person, Who is more than 15 years of age. Here, it is to be noticed that age is mentioned by the plaintiff in the plaint and the contention urged was that the first defendant in the written statement did not dispute that the age mentioned in the long cause tide of the plaint is not correct Thus, it was further argued by the learned Counsel for the plaintiff before the trial Court that though it is mentioned in Ex.Bl-Deed of Adoption that on the date of adoption, the first defendant was minor, his age was not mentioned and in view of the fact that a person could be a minor, till completion of age of 18 years, a finding has to be given in favour of the plaintiff mat the first defendant was aged more than 15 years on the date of adoption. It was further argued before the learned trial Court that the first defendant who was examined as D.W. 1 did not place any evidence to show mat on the date of Ex.Bl-Deed of Adoption he was aged 15 years or less than 15 years.
10. Another point which was argued before the learned trial Court was that as per Section 16 of the Hindu Adoptions and Maintenance Act, 1956, the adoption deed must be signed by the persons giving, also the persons taking the child in adoption. Whereas, in Ex.Bl it is mentioned that only Boddeti Appanna, who adopted the first defendant signed, the plaintiff sought to convince the trial Court with Ex.Bl Adoption Deed, dated 223.1956 and it was prior to coming into force of the Hindu Adoptions and Maintenance Act, 1956 w.e.f. 21.12.1956 and therefore, the adoption which is evidenced by Ex.Bl-Deed of Adoption is not valid.
11. The argument put-forth by the plaintiff was accepted by the trial Court and the trial Court held that the adoption is not valid and held that the first defendant is not the adopted son of late Boddeti Appanna. The learned trial Court, however, held that the evidence on record establish that after the death of Boddeti Appanna, the first defendant only was enjoying the property, as evidenced from the tax receipts since 1970 marked as Ex.B3, bunch of 23 tax receipts, the suit being filed in the year 1992, the plaintiff having failed to establish that after the death of Boddeti Appanna, his wife Boddeti Gangamma was managing the plaint “A and B” schedule properties, that after her death, the plaint ‘B’ schedule property was jointly cultivated by all the legal heirs of Boddeti Appanna and they were sharing the produce jointly, the first defendant perfected his title to the plaint ‘A and B’ schedule properties by adverse possession. The learned trial Court also specifically held that the suit is a speculative suit filed by the plaintiff after lapse of long time and the right of plaintiff if any at all existed had been extinguished. Thus, the trial Court holding that the first defendant perfected his title to the property by adverse possession arrived at a finding that the plaintiff is not entitled for any share in the schedule mentioned properties and accordingly dismissed the suit filed by the plaintiff for partition.
12. The learned first appellate Court concurred with the findings of the trial Court except one relating perfecting title of the plaint ‘A and B’ schedule properties by adverse possession by the defendant the learned first appellate Court also held that the first defendant is not the adopted son of Boddeti Appanna. The learned first appellate Court however, reversed the finding of the trial Court on the issue of adverse possession on the ground that it was neither pleaded by the first defendant nor proved by him.
13. The first appellate Court on the issue of adoption held that without filing any appeal against the finding given by the trial Court or by filing cross-objections challenging the said finding, the first defendant cannot dispute the finding of the lower Court on the issue of adoption and the learned first appellate Court thus, did not allow the first defendant to raise the issue of adoption in the first appeal.
14. This Court will entertain the second appeal only when any substantial question of law is involved for consideration, the findings of fact recorded by the first appellate Court unless perverse, they are final and this Court is not supposed to interfere with these findings of fact in the second appeal.
15. There is no scope for re-appreciation of the evidence in the second appeal. But when a document is misconstrued and the principle of law has been wrongly applied by interpreting the document, it amounts to substantial question of law which can be considered in the second appeal in exercise of power under Section 100 CPC.
16. In Hero Vinoth (Minor) v. Seshammal, 2006 (4) ALD 28 (SC) : (2006) 5 SCC 545 : AIR 2006 SC 2234, the Supreme Court held on this question as follows:
“The interference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interfere under Section 100 CPC.”
17. Further, if the law enables a party (as the first defendant in this case) to contend before the first appellate Court that the finding against him in part of the decree passed by the trial Court in respect of an issue ought to have been in his favour without filing cross objection to the part of the decree or without preferring any appeal, the first appellate Court is under a duty to permit him to raise any such objection against the decree. Rule 22 of Order 41 CPC dealing with the said issue reads as follows:
“Upon hearing respondent may object to decree as if he had preferred a separate appeal:— (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.”
18. In Ravinder Kumar Sharma v. State of Assam, 1999 (6) ALD 38 (SC) : (1999) 7 SCC 435, the Supreme Court held as follows:
“The respondent/defendant in an appeal can, without filing cross objections attack an adverse finding upon which a decree in part has been passed against him, for the purpose of sustaining the decree to the extent the lower Court had dismissed the suit against the respondent/defendant”
19. In the instant case, the first defendant sought to object to the part of the decree passed by the trial Court while arguing the first appeal that the trial Court went wrong in holding that the adoption pleaded by the first defendant in the written statement is not proved and is not valid and that the first defendant is not the adopted son of late Bodeti Appanna. In terms of Rule 22 of Order 41 CPC, the first defendant was entitled to take the said objection to the part of the decree, but he was not at all permitted by the first appellate Court to raise the said issue on the ground that the first defendant did not prefer any appeal or file any cross-objections. This is a grave error of law committed by the first appellate Court. Therefore, not allowing the first defendant to object to the decree dismissing the plea of adoption certainly raises a substantial question of law for consideration in the second appeal. Furthermore, since the first defendant was not allowed by the trial Court (sic. first appellate Court) to raise the said issue at all, he can raise the said issue in the second appeal as one of the substantial questions of law. Here it is relevant to look at Section 103 of CPC which deals with the power of High Court to determine the issue of fact Section 103 CPC reads as follows:
“Power of High Court to determine issues of fad.— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.
20. Therefore, this provision empowers the High Court to determine any issue may be of law or fact, which is necessary for final disposal of the second appeal, provided there is sufficient evidence on the record for determination of such issue. Thus, this Court is of the view that when an issue has not been determined or an issue has been wrongly determined in the case before it in the second appeal relating to a substantial question of law involved in the appeal, the High Court can determine the issue notwithstanding that the issue relates to a question of fact the object underlying the provision is to avoid remanding the matter for the purpose of determining the issue of fact and to decide the same in the second appeal itself, if it is possible for the High Court to determine basing on the evidence available on record the High Court, therefore, takes upon itself to determine the issue of fact under Section 103 of CPC, if the High Court thinks it is necessary for disposal of the second appeal before it Interpreting the powers of the High Court under Section 103(b) of CPC, the Supreme Court in Bhagwan Sharma v. Bani Ghosh (Smt)., 1993 Supp (3) SCC 497 : AIR 1993 SC 398, held as follows:
“The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a re-hearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b) of the Code of Civil Procedure. If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the Court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged.”
21. This Court having regard to the facts of the present case therefore, considered that the evidence on record is sufficient to give a finding on the factum of adoption on the substantial question of law relating to adoption and having decided to dispose of the second appeal without remitting the matter to the first appellate Court to give a finding on the said issue, heard the learned Counsel appearing on either side at length with reference to the evidence on record relating to the adoption pleaded by the first defendant.
22. In the first place, I would like to examine the concurrent findings of both the Courts below on the issue whether the adoption pleaded by the first defendant was proved and whether it was valid.
23. The finding that the first defendant was unable to prove that his age did not exceed 15 years on the date of adoption under the registered Deed of Adoption, dated 22.3.1956-Ex.Bl, in my view is totally misconceived. There was no specific plea in the plaint that the first defendant was aged 21 years on the date of adoption. Only long cause title of the plaint showed that on the date of filing of the suit he was aged 57 years. The finding that the first defendant was more than 15years of age on the date of adoption was recorded by the learned trial Court only on the ground that the first defendant in the written statement did not controvert that his age mentioned in the long cause title of the plaint this is not correct because it is the plaintiff who got mentioned the age of the first defendant as 57 years in the long cause title of the plaint there was no specific assertion in the plaint that the first defendant was aged more than 15 years on the date of alleged adoption. In the absence of any specific plea, in my view it is not obligatory on the part of the first defendant to specifically controvert the same in his written statement the learned trial Court was not entitled to draw a presumption mat on account of not objecting to the age mentioned in the long cause title of the plaintiff and give a finding that the plaintiff's (sic 1st defendant's) age exceeded the prescribed one under law on the alleged date of adoption and the said finding of the trial Court therefore, on this point is not only erroneous, but also misconceived.
24. The learned trial Court recorded a finding mat the adoption pleaded by the first defendant is contrary to the requirements of Section 16 of the Hindu Adoptions and Maintenance Act, 1956 and therefore, it is not valid. The trial Court was of the view that Ex.Bl-Adotion Deed, dated 22.3.1956 was executed only by late Boddeti Appanna, who is said to be the adoptive father of the first defendant and it was not signed by the natural father, therefore, the adoption is not valid. The learned trial Court in my view has not properly understood the real purport of Section 16 of the Act, which does not speak of the conditions relating to presumption as to registered adoption deed. What all Section 16 lays down is that if there is a registered document evidencing adoption, which is signed by the person giving and person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of mis Act unless and until it is disproved Therefore, it is wholly incorrect to say that for the absence of signature of the natural father in the adoption deed, the adoption becomes invalid. The absence of the signature of the natural father does not automatically lead to the conclusion that the factum of giving and taking the child in adoption had not at all been taken place.
25. Further it is well settled that in all cases, the parties will not be in a position to produce direct evidence relating to adoption. Normally, the question of validity of adoption comes for scrutiny before the Court long after the taking place of the adoption. In most of the cases it was not possible for the parties to adduce direct evidence to adoption, in view of the fact that the persons, who witnessed the adoption, may not be alive when the question of the validity of adoption comes for consideration before the Court. In large number of judgments, it has been held that when the adoption takes place long prior to the issue came to be decided before the Court, the Court for considering the validity of adoption can take into consideration the circumstance such as whether the adopted son has been treated by the members of his family and relatives as the adopted son of the person, who adopted him. Further the Courts also will have to consider whether he was treated by the public as the adopted son of particular individual. If mere is evidence to show that he was recognized by the family members and relatives as well as the public that a person is the adopted son of a particular individual, the Courts can presume that he is the adopted son of the said individual. If any document was executed at the time when no litigation existed or contemplated and if in the said document a person was shown as adopted son of a particular individual the Courts can certainly presume that he is the adopted son of the said individual.
26. In the instant case the learned trial Court expressed the view that except examining himself as D.W. 1, the first defendant did not adduce any oral evidence in proof of adoption pleaded by him. But in Ex.B2-registered sale deed dated 15.7.1981 which was executed in favour of the first defendant he was referred as adopted son of Boddeti Appanna. The trial Court also failed to consider certain circumstances which would reveal that there is every possibility of the adoption being true. Late Boddeti Appanna had no male issues, the first defendant is no other than the eldest daughter's son of late Boddeti Appanna and that the first defendant was residing in the adoptive family and he had no connection whatsoever with his natural father.
27. The crucial aspect which was not considered by the trial Court is the effect of pleadings of the plaintiff. The plaintiff admitted in the plaint that the first defendant was brought up as fostered son of Boddeti Appanna. She had not specifically denied the adoption. She mentioned in the plaint that the first defendant is proclaiming that he is the adoptive son of the plaintiffs' grand father, the said adoption is not true, valid and binding and the alleged Deed of Adoption was never acted upon. The averments of the plaint that the alleged adoption deed was never acted upon obviously indicate that the plaintiff is not disputing the adoption deed, but only contending that it was never acted upon. Since the plaintiff did not specifically stated in the plaint that late Boddeti Appanna never executed any adoption deed adopting the first defendant, her version has to be taken as that though mere was adoption it was not acted upon. The plaintiff had categorically admitted that after the death of the first defendant's mother Surisetti Ramayamma, first defendant, who was child, was fostered and brought up by his maternal grand parents i.e., Boddeti Appanna and Boddeti Gangamma. From all the circumstances and from the established fact that the first defendant has been living in the adoptive family since his childhood and exclusively enjoying the properties, after the death of Boddeti Appanna, the learned trial Court ought to have drawn presumption that the first defendant is the adoptive son of Boddeti Appanna and the adoption pleaded by the first defendant is valid. The learned trial Court has mis-directed itself to the evidence available on record and also on the legal aspect as to how the adoption could be proved by the person pleading the adoption. According to the first defendant and as could be seen from Ex.Bl-Deed of Adoption, the adoption took place on 22.3.1956, the question came up for consideration before the learned trial Court in a suit filed in the year 1992. Due to lapse of time, it was certainly not possible for the first defendant to produce any evidence relating to adoption and the learned trial Court considering the other material available which is referred herein above, and the fact that late Boddeti Appanna executed a registered adoption deed on 22.3.1956, ought not to have dismissed the plea of adoption taken by the first defendant on mere technical grounds. Therefore, I hold that the finding of the learned trial Court on the validity of the adoption is misconceived and contrary to the evidence on record and is liable to be set aside in the second appeal.
28. Now I would like to deal with the question as to whether in case the adoption of the first defendant is invalid, the first defendant is entitled for the bequest under Ex.B1-Deed of Adoption.
29. Sri C. Subba Rao, learned Counsel appearing for the respondents would submit that when the Court comes to the conclusion that the adoption is not proved and it is not valid in law, the bequest in favour of the first defendant under Ex.B1-Deed of Adoption fails and the first defendant is not entitled to claim rights in the property of late Boddeti Appanna since the first defendant is not an adopted son. The learned Counsel relied upon a decision in Deb Raikat v. Rajeswar Dass Alias Jagindra Deb Raikat, (1885) LR 12 IA 72, in which case the question before the Privy Council was whether the mention of individuals name in the document of title “Angikar-patra” as an adopted son is merely descriptive of the person and whether he is entitled to the gift under the deed irrespective of his status as an adopted son. The document reads as follows:
“I authorize you by this angikar-patra to offer oblations of water and pinda to me and my ancestors after my death, by virtue of your being my adopted son. Moreover, you shall become the proprietor of all the moveable and immoveable properties which I own and which I may leave behind; you shall become entitled to ray denapawna (debts and dues), and you and your sons and grandsons shall enjoy them agreeably to the custom of the family.”
30. Interpreting the document, the Privy Council held as follows:
“The individual make the offerings by virtue of being an adopted son, and moreover he is to become the proprietor. This is to be the consequence of the adoption. In fact the angikar-patra only states what would have happened without it the distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances.”
31. Ultimately the Privy Council decided the issue as follows:
“In the present case their Lordships are of opinion that it was Jogendra's intention to give his property to Rajeswaras his adopted son, capable of inheriting by virtue of the adoption, and the rule that it is not essential to the validity of a devise or bequest that all the particulars of the subject or object of the gift should be accurate is not applicable. As the adoption was contrary to the customs of the family and gave no right to inherit, the angikar-patra had not any effect upon the property. It is, therefore, unnecessary to decide whether Rajeswar was an only son or whether he was duly given in adoption, about which there was the usual conflict of evidence.”
32. The learned Counsel, therefore, argued that in the instant case, if the Court decides that the first defendant is not the adopted son of Boddeti Appanna, he is not entitled for the bequest under Ex.B1-Deed of Adoption.
33. On the other hand, Sri P. Rajasekhar, learned Counsel appearing for the appellant/first defendant would submit that it is clear from the language of Ex.B1 Deed of Adoption, that the first defendant takes the bequest under the said deed irrespective of the fact whether he is considered by the Court as an adopted son or not.
34. It is now necessary to look into the contents of Ex.B1-Deed of Adoption. It is mentioned in Ex.B1-Deed of Adoption that the first defendant is the daughter's son of late Boddeti Appanna. As Boddeti Appanna has no male children, he took the first defendant to his house in his childhood, brought him up, gave him the education and on the date of Ex.B1-Deed of Adoption i.e. on 22.3.1956, he, in the presence of relatives, friends and purohit as per Hindu rites and caste custom adopted him and took him as adopted son. Thus, he got executed the ‘dattatasweekara patra’ in favour of the first defendant it is further mentioned in the document that from the date of execution of the said document, the first defendant shall be called with the surname Boddeti Le. the Surname of Appanna. After the death of Boddeti Appanna and his wife the first defendant has to perform the last rites and also from the date of the document he shall represent the entire property of Boddeti Appanna and he has to enjoy the property with full rights. From the contents of the document, it is obvious that the properties were gifted in favour of the first defendant unconditionally and it is clearly mentioned in the document that from the date of execution of the document the property was gifted in favour of the first defendant giving him full rights. The recitals of the document further indicate that after the death of Boddeti Appanna and his wife, he has to perform the obsequies and he has to enjoy the property with full rights forever.
35. In Krishna Rao v. Sundara Siva Rao, AIR 1931 PC 109, similar issue had came up for consideration before the Privy Council. The document which was sought to be expounded by the Privy Council read that the executant who had no issues had adopted a boy, when he was young celebrated his upanayanam etc., had chosen him as son. So he had communicated the said fact to the revenue authorities and got his name registered in the office of the Karanam held by him. It is further mentioned by the executant in the document that the boy shall be his son and he shall be entitled to his entire property as a son. At the time of executing the document, the executant was ill and four months after the execution of the document he died. The Privy Council held as follows:
That the document did not purport to convey anything de present, and further it could not be read either as being itself intended as an act of adoption or as being an authority to adopt But the last sentence of the document clearly referred to succession to the writer's entire property on his death, and has testamentary effect in favour of the person alluded to in the document”
36. The Privy Council interpreted me issue in the following manner.
“Moreover, it is reasonable to assume that the writer must have been fully aware of the fact now admitted that no actual adoption had taken place and also to assume that his anxiety was to do all he could to secure the succession of defendant 2 whom he had brought up and treated as a son, to his office as karnam, which would open on his death.”
Their Lordships were of the opinion that:
“Last sentence of the document clearly refers to succession to the writer's entire property on his death and it has testamentary effect in favour of defendant 2, who is now dead and is represented by the appellant the document having been executed in the mofussil, is outside the Hindu Wills Act, and requires no formalities. While it is true that a will should be registered in Book No. 3, this point is insufficient, in their Lordships' opinion, to outweigh the terms of the document itself and the other surrounding circumstances.”
37. From the above, therefore, I do not accede to the submissions made by the learned Counsel appearing for the respondents that when the adoption fails, the bequest under Ex.B1-Deed of Adoption also fails and the first defendant is not entitled to the property of late Boddeti Appanna.
38. From the facts and circumstances of the case and from the true construction of Ex.B1 -adoption deed, I am of the considered view that apart from his right as adopted son, the first defendant is entitled to the schedule mentioned properties as a persona designate. The terms of the document Ex.B1-Deed of Adoption are very clear that the intention of late Boddeti Appanna was that after his death and that of his wife, the first defendant has to succeed to all his properties. He mentioned in the document that the first defendant is the adopted son, therefore, for not proving the ceremonies or for any other technical reason, even if it is considered that the adoption is not valid according to law, the document Ex.B1-Deed of Adoption has testamentary effect after the death of Boddeti Appanna and his wife and the schedule properties “A and B” stood vested in the first defendant with full rights. Therefore, the bequest under Ex.B1-Deed of Adoption does not fail even considering that the adoption is not proved and it is not valid according to law. For what all stated hereinabove, the first defendant became entitled to plaint ‘A and B’ schedule properties with full rights under Ex.B1 - Deed of Adoption dated 22.3.1956. The said document has a testamentary effect, therefore, after the death of Boddeti Appanna and his wife, the first defendant became absolute owner of the plaint “A and B” schedule properties. On evidence it was found that the plaint ‘C schedule property is the self acquired property. Therefore, the plaintiff is not entitled to claim any share in the schedule mentioned properties.
39. In the result, the second appeal succeeds and the same is allowed. There shall be no order as to costs.
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