Gummalapura Tagginamatada Kotturuswami vs Setra Viravva and Others

Panchapakesa Ayyar, J.—This is an appeal against the judgment and decree of the District Judge of Bellary dated 26th November, 1945, in

O.S. No. 39 of 1943. That suit was filed on behalf of all the reversioners by the appellant, Gummalapura Tagginamatada Kotturuswami, head of

the Lingayat Togginamutt at Kampli, claiming to be the nearest reversioner of the estate of his natural brother, Setra Kari Virappa, given away in

adoption, for a declaration that the adoption of Kotrabasayya, the second defendant, on 11th October, 1942, by Setra Viravva, the first defendant

and widow of Kari Virappa, was invalid, as not being in conformity with the will of Kari Virappa, Exhibit P-2(a), dated 10th October, 1920 and

on other grounds and not binding on the plaintiff and the other reversioners. The estate is worth about a lakh of rupees. Setra Kari Virappa was

given in adoption to one Virappa Devaru and this was referred to in Virappa Devaru''s will Exhibit P-1 dated 4th February, 1899. That adoption

also had been contested, but unsuccessfully. Kari Virappa died on 23rd October, 1920. He had been a Pattadhikari or head of the Lingayat

Tagginamutt before the plaintiff. By a curious custom in that mutt, as well as in many other similar Lingayat mutts in Bellary district, a small boy is

made the pattadhikari when he is a minor, and he puts on yellow robes; but when he attains majority, he may decide to marry and then can resign

the pattadhikariship to his nominee, marry and raise a progeny. The consequence is that his rights of inheritance in his family, whether natural or

adopted, do not cease, as in the case of an ordinary Hindu sanyasi who becomes civilly dead, on assuming the yellow robes. The evidence of

P.W. 13, a pattadhikari of a similar type, and of other witnesses, and the documentary evidence in the case proved this fully.

The important clauses relevant for our purpose in Exhibit P-2(a), Kari Virappa''s will, are in paragraphs 3 and 14. In paragraph 3, Kari Virappa

said:

I have no issue whatever. For the purpose of continuation of my family, I have given permission to my wife, Virawa, to adopt a son. I have given

her permission to adopt as many times as would be necesary, should the previous adoption be unsuccessful. But Virawa must adopt only a boy

approved by the respectable persons appointed by me in paragraph 14. Should Virawa die before making any adoption, the persons becoming

trustees should arrange for the adoption of a boy for the continuation of my family in accordance with my kulachara (family usage).

The material portion of paragraph 14 runs as follows:

For the purpose of duly carrying out after my death the arrangements proposed herein for securing a suitable boy and adopt him according to our

religion; then to take charge of the properties and manage them properly during the minority of my adopted son and then make them over to my

adopted son as soon as he attains majority, to look after the protection of my wife and my adopted son; for giving effect to the arrangements

proposed in regard to the Sanskrit Patasala referred to in paragraph 10; for dealings with the properties of the adopted son in future by sale or

otherwise according as circumstances may require; for improving the said properties by the addition or acquisition of other properties; and in

general, for the purpose of working out the terms and conditions contained in this will after my death, I nominate the following gentlemen as

Trustees :-

He then nominated Holayya, Gundappa, Malkambanna, Gurusanthappa and Huchappa (P.W. 10) as trustees and added:

After me these trustees should carry through everything as directed herein. If any vacancy should occur among these trustees, the remaining

trustees are empowered to co-opt anyone they please.

One of the five persons thus appointed trustees declined to accept the job; the other four accepted; but died, one by one, leaving only P.W. 10

alive now.

After Kari Virappa''s death the four trustees who had agreed to function filed along with defendant, Kari Virappa''s widow, O.S. No. 20 of

1921 in the Subordinate Judge''s Court, Bellary, to recover some lands from Kari Virappa''s adoptive mother, Chennamma and others. In that suit,

it was decreed that Kari Virappa had been validly adopted by Virappa Devaru in 1892, despite Chennamma''s denial of this that he had become

the pattadhikari of this mutt in 1896 and had relinquished that office in 1909 in favour of the plaintiff, then aged 3 or 4, and had married Setra

Virawa, the first defendant in 1911, that he had not forfeited his right to inherit the properties of Virappa Devaru his adoptive father by reason of

being a Sanyasi that he had, in fact, inherited all of them and enjoyed them till he died and that he had bequeathed his properties to his widow, the

first defendant, as a persona designata under his will [Exhibit P-2 (a)] dated 10th October, 1920. Chennamma had also set up three reversioners,

who were, according to this plaintiff, one degree more removed than himself from Virappa Devaru, to file O.S. No. 57 of 1921 attacking the

adoption of Kari Virappa as false and invalid. The plaintiff who was a natural brother of Kari Virappa said that he did not join in that suit because

his own brother''s adoption was being attacked therein, though he was a nearer reversioner than the persons who filed the suit. O.S. Nos. 20 and

57 of 1921 were tried together and O.S. No 57 of 1921 was dismissed. This plaintiff then filed a suit in 1923, after attaining majority, against

Chennamma for recovering some mutt lands. In that suit, the first defendant is alleged to have helped him financially and otherwise. The suit was

decreed in his favour and he got the lands he sued for. He lived in the house of defendant 1 till 1926 or 1927.

Having succeeded in 1923 suit, the plaintiff is said to have cast covetous eyes on the first defendant''s property. He filed O. P. No. 2 of 1929 in

the District Court, Bellary, for permission to file a suit in forma pauperis against the first defendant claiming some properties in her possession as

belonging to the mutt. In that pauper petition, he swore that he was a Sanyasi and, therefore, could not claim the family lands in contrast to his

present position. That pauper petition was dismissed. The plaintiff paid the court-fee and filed O.S. No. 15 of 1929. The suit was compromised

and the plaintiff got substantial properties from the first defendant at the instance of some panchayatdars. Chennamma the adoptive mother of Kari

Virappa who was inimical towards defendant 1, resided with the plaintiff till she died in 1939. She had sworn as a witness in the suits of 1921 that

the plaintiff was not related at all to the family of her husband, Virappa Devaru, and that he was an absolute stranger to the family. The plaintiff

explained that this was false and was due to her anger at his not joining in O.S. No. 57 of 1921.

In 1925, the 1st defendant began to take steps to adopt a boy. Her first attempt proved futile as the boy she wanted to adopt was found to be

an orphan and ineligible for adoption under the Hindu law. She had given a notice Exhibit D-23, regarding this proposed adoption to P.W. 10, one

of the original surviving trustees. P.W. 10 and the only surviving trustee, Guru Santhappa, were said to have suggested the names of several

suitable boys related to the family to the 1st defendant for adoption; but she is said to have been not willing to adopt any of these.

On 22nd November, 1934, Guru Santhappa and P.W. 10 the only two surviving trustees, are said to have co-opted the plaintiff and two

cousins of his (defendants 3 and 4) as trustees in the place of the three deceased original trustees under the powers given in paragraph 14 of Kari

Virappa''s will. Exhibit D-29 (a) is said to be the proceedings relating to the co-option of the three trustees. The learned District Judge disbelieved

the story of this co-option as the minutes about it formed the only entry in that note-book and the fact of the co-option was not communicated to

the first defendant, and even in the telegraphic notice (Exhibit D-24) sent to the 1st defendant on 14th December, 1934, asking her not to adopt

without the consent of the trustees, only the names of Guru Santhappa and P.W. 10, the original trustees, appeared as trustees and not the names

of these alleged co-opted trustees, and as it was admitted that these co-opted trustees did nothing at all ever since their alleged appointment. He

considered that the whole thing was a manoeuvre by the plaintiff to harass and obstruct the widow, the 1st defendant and get more properties from

her.

In 1939, the 1st defendant adopted one Sekharayya. Exhibit P-14 was an invitation card issued for that adoption. D. Ws. 1 to 5 and 7 swore

that P.W. 10 approved of that adoption and was the only surviving original trustee then, and that he attended the adoption with his wife. A

photograph (Exhibit D-32) taken on the occasion shows P.W. 10''s wife seated prominently next to defendant 1, who had the adopted boy in

front of her. The lower Court disbelieved P.W. 10''s statement on oath that he had not approved of that adoption or attended the ceremony.

The plaintiff and P.W. 10 and defendants 3 and 4 filed a pauper petition O.P. No. 10 of 1940, in the District Court, Bellary, to declare that

adopt on invalid. Of course, prior to that, the plaintiff resigned his post as co-opted trustee. That pauper petition was thrown out. It is alleged that

before the plaintiff decided to pay court-fee and file a regular suit the co-opted boy died on 6th August, 1942.

On 18th September, 1942, the first defendant entered into an agreement, Exhibit D-25, with: he natural father of the second defendant for the

adoption of the second defendant by her. On 11th October, 1942, she took the boy in adoption. But the adoption deed Exhibit D-26 was

executed only on 23rd June, 1943. No invitation card was issued for the second adoption or a photograph taken on the occasion. The reason

given by the first defendant''s counsel in the lower Court was that, as the first boy, taken in adoption after the invitation card and photo, died

prematurely, it was not considered proper to invite another stroke of fate by following a similar procedure regarding the second boy; the lower

Court accepted that argument, in view of the superstitions prevalent in the countryside regarding such matters. D.Ws. 1 to 5 and 7 swore that the

prior approval of P.W. 10 the only surviving original trustee was taken for this adoption also, and that P.W. 10 attended the adoption with his wife,

as on the previous occasion. P.W. 10, of course, denied this also; but the lower Court disbelieved his statement on oath and held that he must have

approved the adoption and attended the ceremony with his wife as before.

The plaintiff, of course, contended that the adoption was without the consent or approval of P.W. 10, the surviving original trustee, and was

invalid on that account, that it was invalid also because there was not the joint approval of all the five original trustees as required under the will of

Kari Virappa. He urged that if, for whatever reason, one of the original trustees did not join in the approval, the adoption would be invalid in law.

He contended that P.W. 10 did not attend the adoption ceremony. He contended further that the approval of the three co-opted trustees was also

required to make the adoption valid. He urged that the boy adopted was not of the same family and was not even fit and suitable otherwise, and

that the adoption was invalid for that reason too. He relied on the genealogy in Ex. P-11, a copy of a genealogical table filed in 1860, for proving

that he was a reversioner of Kari Virappa, and urged that all the nearer reversioners were dead, and, so, he was the nearest reversioner alive. The

learned District Judge disbelieved him and holding that he was not even a relative or remote reversioner of Kari Virappa, being a man belonging to

the Gundada family, and not to the Setra family of Kari Virappa. The first defendant had urged that the plaintiff was simply claiming to be a

reversioner and relative because of the adoption of his natural brother, Kari Virappa, by the Setra family, and because of his natural father,

Sanapurappa, having migrated along with his son, Kari Virappa, to the richer Setra family after the adoption and described himself as Setra

Sanapurappa by virtue of his new surroundings. The learned District Judge also held that even if the plaintiff was really related to Kari Virappa, the

evidence proved that there were nearer reversioners alive, and that the plaintiff was not really suing on behalf of all the reversioners, as he

pretended, but only in his own selfish interests, and that the Court''s discretion should not be exercised in his favour; and he allowed to maintain it

as per the ruling in Velu Sethurayar and Another Vs. Karuppayammal and Others, since the circumstances for deviating from that rule laid down in

Lakshmi Ammal and Another Vs. Anantharama Aiyanagar and Another, were different from those in the present suit.

Defendants 1 and 2 had, of course, vigorously contested the plaintiff''s suit, and alleged that the plaintiff was neither a relative nor a reversioner,

but an utter stranger not interested in Kari Virappa''s properties. They also stated that the plaintiff was civilly dead, and was disentitled as a

sanyasi, from claiming any reversionary rights, even if he had any. They asserted that the adoption of the second defendant was perfectly valid and

binding, as it was performed in pursuance of the imperative and insistent wishes of Kari Virappa, who wanted to provide for his spiritual and

worldly welfare after his death, and was also approved of by P.W. 10, the only surviving original trustee, who alone was required to be consulted

and whose approval was quite enough. Of course, they denied the truth and validity of the alleged co-option of three trustees. Defendants 6 and 7

were only persons who got some bequests under the will of Kari Virappa. Defendants 3 and 4 were two of the three co-opted trustees (the third

one being the plaintiff himself), and defendant 5 was the surviving original trustee (P.W. 10). Defendants 3 to 5 had vigorously supported the

plaintiff''s case.

The learned District Judge framed the following issues:

(1) Whether the plaintiff is a reversioner entitled to sue ?

(2) Whether the plaintiff, the head of the Taggina mutt, is a sanyasi who is civilly dead and had lost all his civil rights ?

(3) Whether plaintiff is not entitled to sue by reason of his becoming a sanyasi ?

(4) Whether the adoption of 2nd defendant by defendant 1 is invalid for all or any of the reasons stated in paras 6 to 9 and 12 of the plaint ?

(5) Is the suit barred by res judicata by reason of the judgment in O.S.No. 57 of 1921, Sub-Court, Bellary ?

(6) Whether the gold jewels and silver articles set out in the plaint schedule belonged to the estate of the late Kari Virappa and are they in the

possession of defendant 1 ?

(7) Whether the suit is malicious and vexatious and whether defendants 1 and 2 are entitled to compensatory costs u/s 35-A, Civil Procedure

Code.

After discussing the entire evidence, he found, on issue No. 1 that the plaintiff was neither a relative nor a reversioner, and was, in any case not

the nearest reversioner, and was not therefore entitled to sue. On issues Nos. 2 and 3 he held that the plaintiff was not civilly dead and was entitled

to sue though he had become a sanyasi. He remarked that it passed his comprehension how a person so engrossed in worldly affairs as the plaintiff

had shown himself to be, could have thrust on him the legal position of a sanyasi a position derived from a complete renunciation of all the

properties and mundane materialism. On issue No. 4, he found that the adoption of the second defendant was perfectly valid and binding. On issue

No. 5, he found that the suit was not barred by res judicata by reason of the judgment in O.S. No. 57 of 1921 on the file of the Sub-Court,

Bellary. On issue 6, he did not give any finding as no evidence was let in by either side. On issue 7, he found that the suit was false and vexatious

and that the evidence showed that the plaintiff had been harassing the 1st defendant for several years and that he had manoeuvred himself into the

position of a co-opted trustee with ulterior motives probably in order to force her to part with some more property, and that he had filed this

extraordinary suit in the guise of a reversioner, but really only for his own benefit, and that he had undoubtedly caused great expense, vexation and

harassment to defendant 1 by a prolonged trial and lengthy depositions and should, therefore, be made to pay compensatory costs u/s 35-A, CPC

and he fixed the compensatory costs at Rs. 750. In the end, he dismissed the suit with full costs of defendants 1 and 2 fixing the pleader''s fee at

Rs. 1,000 besides giving Rs. 750 as compensatory costs. The plaintiff has appealed.

[Their Lordships after dealing with certain contentions not necessary for the purpose of this report continued.]

The next contention was that even if the factum of the adoption of the second defendant was proved, and that P.W. 10, the only original

surviving trustee, approved of that adoption and attended the ceremony, the adoption would still be invalid under the will Ex. P-2(a) of Kari

Virappa, since the will stipulated that the first defendant should adopt only a boy approved by the respectable persons appointed by him in

paragraph 14 and so all the five persons named in paragraph 14 should give a joint approval, and that if any one of those five persons did not

accept the trusteeship, or died before the adoption, or refused to give their approval the adoption would be invalid. Mr. Alladi Krishnaswami

Aiyyar, who urged this point as the strongest thing in favour of the appellant, relied on paragraph 965 of Halsbury''s Laws of England, volume 25,

and some passages on pages 159 to 162 of Farwell on "" Powers "" and several Privy Council and Bombay and Madras rulings. Farwell remarks

thus at page 159:

The consent of any person required to consent, and also all formalities annexed to the execution, must be respectively given and perfected during

the lifetime of the done of the power.

At pages 161 and 162, he remarks:

If a power is given, to be executed with the consent of one or more persons, and that one, or any one of the others dies, the power is gone.

Paragraph 965 of the Halsbury''s Laws of England, volume 25 is only to the very same effect. Of course this represents the law in England as well

as in India in all cases where the consent of any person entrusted with a power is required, and where naked power is given to such persons. At

page 512 Farwell has remarked:

Mere powers, as distinguished from trusts, are strictly construed, and can only be exercised by the persons who are either expressly or by

reference, designated as donees of the power.

He goes on to add that such powers cannot be exercised after the death of the persons designated, and that a bare power given to two or more

cannot be executed by the survivor. But he and Hailsham and all others agree that where a power is annexed to an office, like executors, trustees,

etc., all persons who fill that office can exercise that power.

The learned advocate for defendants 1 and 2 urged that in the present case no power at all was given to the persons appointed as trustees in

paragraph 14 by the testator, but only their approval as trustees of the boy adopted by the widow was required. It was urged further by the

learned advocate for defendants 1 and 2 that paragraph 3 of the will, already extracted, showed beyond all possibility of doubt that the testator

was very keen on adopting a son for his temporal and spiritual benefit to continue his line and to conform with his kulachara, and that this so

obsessed him that he even made a provision for the trustees to adopt a boy for him if the first defendant should die without making any adoption--

an illegal thing, as held in Amirto Lal Dutt v. Sumomoyee Dasi (1900) L.R. 27 I.A. 128 : ILR 27 Cal. 996 (P.C.) and showing by the very illegality

of the provision his terrible anxiety that a child should be adopted for him to continue his line and fulfil the kulachara.

Mayne has remarked at page 215 of his Hindu law and Usage "" the rules of construction of authorities to adopt have been laid down by the

Judicial Committee in Sri Raja Venkata Narasimha Apparao v. Parthasarathi Apparao (1913) 26 M.L.J. 411: ILR 37 Mad. 199 : L.R. 41 I.A. 51

(P.C.) and in Rajendra Prasad Bose v. Gopal Prasad Sen. (1930) 59 M.L.J. 615 :L.R. 57 I.A. 296 : ILR 10 Pat. 187 (P.C.) Apparently the

construction will be more liberal where the paramount intention to be gathered from the language of the will the authority is religious than when it is

secular (Sri Raja Venkata Narasimha Apparao v. Parthasarathi Apparao (1913) 26 M.L.J. 411: ILR 37 Mad. 199 : L.R. 41 I.A. 51 (P.C.) and

Rajendra Prasad Bose v. Gopal Prasad Sen. (1930) 59 M.L.J. 615 :L.R. 57 I.A. 296 : ILR 10 Pat. 187 (P.C.)) But both the objects viz., to

secure spiritual benefit to a man and to continue his line are meritorious in the view of the Hindu law and both are in consonance with the feelings

known to prevail throughout the Hindu community (L.R. 33 I.A. 145). Where an authority to adopt is given by a husband the presumption is

strong that he desires to be represented by an adopted son. The Courts would not be astute to defeat an adoption not clearly in excess of the

power given by placing a narrow construction of the words of the authority, Bhagat Koer v. Dhanukhrdhari Prasad Singh (1919) 37 M.L.J. 513 :

L.R. 46 I.A. 259 : ILR 47 Cal. 466 (P.C.) Mutsaddilal v. Kundan Lal. (1905) 16 M.L.J. 174 : L.R. 33 I.A. 55 : I.L.R. 28 All 377 (P.C.) "" The

learned advocate for defendants 1 and 2 urged that a liberal construction should be given to the words of para. 3 of the will and paramount

intention of the testator, to have an adopted son, carried out and the adoption upheld. He pointed out that an absolute and unlimited power was

given to the widow to adopt as many times as would be necessary, should the previous adoption be unsuccessful; and that the direction that she

must adopt only a boy approved by the respectable persons appointed by him in paragraph 14 should be taken to be merely recommendatory and

not mandatory; that failure to go by that direction would not make the adoption invalid, that, in any event, the direction was intended only to

operate regarding the five persons appointed by the testator himself as trustees in paragraph 14 and only the trustees alive at the time of the

adoption need be approached by the widow for approving the adoption, and that as the approval of P.W. 10, the sole surviving trustee, to this

adoption had been asked for and given, the adoption was perfectly valid in any event. We agree. There is no doubt whatever in our minds that the

testator was very very anxious to have a boy adopted for him in order to continue his line for both temporal and spiritual purposes, the word

kulachara"" indicating the spiritual motive, which is also further reinforced by the testator''s having been a pattadhikari of a mutt, and having been

deeply interested in the maintenance of a Sanskrit Patasala, named expressly in the will as a thing to be looked after carefully. Indeed, the very

provision in the will for the trustees to adopt a boy for him in case his widow died without adopting one shows his anxiety to have an adopted son

at all costs.

No doubt, as per the rulings of the Privy Council in Sri Raja Venkata Narasimha Apparao v. Parthasarathi Apparao (1913) 26 M.L.J. 411 :

ILR 37 Mad. 199 : L.R. 41 I.A. 51 (P.C.) and Rajendra Prasad Bose v. Gopal Prasad Sen (1930) 59 M.L.J. 615 : L.R. 57 I.A. 296 : ILR 10

Pat. 187 (P.C.) and the rulings of the Bombay High Court in Rangubai v. Bhagirathi Bai (1877) ILR 2 Bom. 377 and of the Madras High Court in

Janakiramayya v. Venkatalakshmamma (1931) M.W.N. 473 a power to adopt must be exercised strictly in accordance with the terms, and the

rules prevailing in England as to the construction of powers applicable thereto, though in construing a document whether in English or the

vernacular, the fundamental rule is to ascertain the intention from the words used and the circumstances are to be regarded only to show the

intended meaning of the words used. We are satisfied from the reading of the will of Kari Virappa that he intended his widow to adopt as many

times as was necessary, out of her own free choice, without restricting the choice to relatives etc. and without delegating the selection of the boy to

the trustees or compelling her to select the boy in consultation with them. His intention was undoubtedly to enable her to select the boy she liked,

but only to get the approval of that boy by the original trustees who happened to be alive and holding that office at that time.

It is not a case here as in the case of Sri Raja Venkata Narasimha Apparao v. Parthasarathi Apparao (1913) 26 M.L.J. 411 : ILR 37 Mad.

199 : L.R. 41 I.A. 51 (P.C.) where, the two widows of the testator were jointly given a power to adopt, and it was held, therefore, that one

widow could not adopt by herself, as she had not been given the sole power to adopt a boy, as in this case. Nor is this a case like Rangabai v.

Bhagirathi Bai (1877) ILR 2 Bom. 377 where the previous consent of the Government to the adoption was made a condition precedent. In this

case, there is no condition precedent at all to the widow''s adopting any boy she liked. She was only asked to adopt a boy who had the approval

of the original trustees appointed under paragraph 14, meaning thereby the trustees in their official capacity and enabling therefore a surviving

trustee, like P.W. 10, to give the consent. Nor is it a case as in Amirto Lal Dutt v. Surnomoyi Dasi (1900) L.R. 27 I.A. 128 : ILR 27 Cal. 996

(P.C.) where a widow was authorised to adopt only in conjunction with two other executors, or as in Rajendra Prasad Bose v. Gopal Prasad Sen

(1930) 59 M.L.J. 615 : L.R. 57 I.A. 296; ILR 10 Pat. 187 (P.C.) where the widow was allowed to adopt only with the previous permission of

the testator''s father, or as in the case of Janakiramayya v. Venkatatakskmamma (1931) M.W.N. 473 where the widow was given the power to

adopt only acting in conjunction with the testator''s mother.

We are satisfied that none of the rulings relied on by Mr. Alladi Krishnaswami Aiyyar for holding the adoption invalid would apply to the

circumstances of this case.

The ruling in Sri Raja Venkata Narasimha Apparao v. Parthasarathi Apparao (1913) 26 M.L.J. 411 : ILR 37 Mad. 199 : L.R. 41 I.A. 51

(P.C.) will not apply. There is no question of joint power given to two widows here and the consequent necessity for both the widows to act jointly

before adopting a person as in that case. It is because of the two widows jointly empowered that their Lordships held that to hold that one of the

widows could adopt a son after the death of the other widow would be providing for a period of time which the testator left unprovided for and

would be making an addition to his testamentary dispositions which no Court, construing a will, was entitled to do. Here, however, there are no

two widows, but only a single widow. Nothing need be added to the testamentary dispositions of this testator for holding this adoption to be

invalid. Indeed it will only be carrying out the testamentary dispositions of the testator and construing the will in the way he wanted. Nor was any

power given to the five trustees appointed by the testator in paragraph 14 of his will to select a boy for adoption much less to force that boy on the

widow and disentitle her to adopt any boy other than the boy they selected. The so-called power given to the trustees under the testator''s will was

simply a power to approve; in other words it is no real power at all. The Canarese word used is "" oppida "" or approval and not "" anumathi "" or

permission much less ""hakku"" or right.

In Rajendra Prasad Bose v. Gopal Prasad Sen (1930) 59 M.L.J. 615 : L.R. 57 I.A. 296 : ILR 10 Pat. 187. (P.C.) also an adoption by the

widow was expressly made subject to a condition precedent namely the approval of the testator''s father and could not have been made by the

widow herself acting alone. It was not a case of mere approval as here. Their Lordships of the Privy Council remarked in that case:

It is important to bear in mind that Ram Prasad could not have been married ""many years before the anumatipatra was executed, and his wife was

then only 13 or 14 years of age. It is unlikely that he could ever have wished that his girl wife should have an unrestricted choice in the selection of

his adopted son to the extent of allowing her to bring a stranger to inherit his property. In their Lordships'' opinion, the words "" with the permission

of my father "" created a condition precedent to the exercise of the power of adoption certainly during the lifetime of the father, and there is no

reason for holding that the words are to have a different effect after the death of Golak (the father).

Here the widow was not a young girl when the testator died, as in that case, but was 31 years old at the time of the will and had lived with her

husband, the testator, for many years, and had infused such confidence in him that he had asked her not to make one adoption but as many

adoptions as necessary in order to carry out his paramount intention of having an adopted son to continue his line and fulfil the kulachara.

So, too, in Janakiramayya v. Venkatalakshmamma (1931) M.W.N. 473 one of the important reasons given for holding the adoption invalid,

on construing the will, was that the will provided for the devolution of the properties in the contingency of no adoption by the widow, showing

thereby that the testator had no paramount intention of having an adopted son in any event; whereas, here the will does not provide for the

contingency of no adoption by the widow except by asking the executors to adopt in case the widow did not adopt.

It has been held in In re Smith : Eastick v. Smith (1904) Ch. D. 139 that when a testator appointed his wife, Mary Ann Smith, his brother,

Charles Smith, and his friend, Robert Bell, executors and, trustees for selling his estate, it must be presumed that the power was given to them ex

officio, as an incident to their office, inspite of there having been ample indications of personal confidence in them, and that the power given to the

trustees passed to the office of the holder or holders thereof for the time being. Here, therefore, even if the five trustees appointed under paragraph

14 of the will are held to have a power to approve of the adoption, that power must be held to be given to the trustees officially, and to have

devolved on the surviving trustee, P.W.10, whose approval will be quite sufficient. We agree with the lower court in holding that no trustees had

been really co-opted in 1934, as pretended, and that the evidence regarding such co-option is worthless and was rightly disbelieved, being unfit to

be acted upon, these trustees having not joined in Ex. P.16, issued shortly after their appointment, and having done nothing after their supposed

appointment, and even the resolution regarding their appointment being highly suspicious.

Mr. Alladi Krishnaswami Aiyyar''s argument that all the five trustees appointed in paragraph 14 should give a joint consent is unsustainable in

this case, because the so called "" power "" has been given to the trustees officially, and not to each personally, and, so, may be exercised by the

holder for the time being, as held in In re Smith : Eastick v. Smith (1904) Ch. D. 139 and in paragraph 957 of Halsbury''s Laws of England,

Volume 25 and also by Farwell .It has been expressly held by the Privy Council in Bal Gangadhar Tilak v. Srinivas Pandit (1915) 29 M.L.J . 34 :

L.R. 42 I.A. 135 :I.L.R. 39 Bom. 441 (P.G.) that where a Hindu testator, by his will, appointed five trustees for his property and gave power to

his widow to adopt a son with their consent and advice and one of the trustees declined to act, the consent, of the declining trustee was not

necessary and that the adoption made with the consent of the other four trustees was valid. Their Lordships did not decide the question as to what

would have happened if only the majority of the trustees who functioned had agreed to the adoption. Possibly, that decision would have depended

on the reasonableness of the refusal. An unreasonable refusal, motivated by corrupt or improper motives, might have been ignored and the

testator''s paramount intention to adopt carried out, and the adoption upheld, if it was of suitable boy, as in this case. Though the plaintiff had urged

at first that the boy adopted in this case, namely, defendant 2, was unfit in general and as not belonging to the testator''s family group of agnates,

this objection was not proved by any evidence and was not even pressed before us. The second defendant is obviously a fit and suitable boy from

the same community, eligible for adoption, as spoken to by D. Ws. 1 to 5 and 7, and, as is clear from the approval of P.W. 10, the sole surviving

trustee. That he was not the testator''s agnate or relative is no ground for disqualification, even if true.

In Rattanlal v. Baijnath (1937) ILR 19 Lah. 1 the Privy Council has held that where a Hindu testator appointed four executors and provided,

by a clause in his will, that the said executors should be competent to select a boy of good family in the neighborhood and have him adopted by his

wife on his behalf and one of the executors after consultation with the others selected a boy to be adopted, and the widow adopted him, the

adoption was valid, even though the other three executors had not asked the widow to adopt that boy, or even expressed to her their approval of

the adoption. In that case, the widow was not given the power to adopt a boy, as here, and the executors were asked to select the boy. It follows

that in this case the adoption would have been easily held by their Lordships to be valid.

In Surendra Nandan alias Gyanendra Nandan Das v. Sailaja Kant Das Mahapatra I.L.R.(1891) Gal. 385 it was held that where a Hindu

appointed one K, as manager of his property under his will, and added that his widow "" will adopt a son with the good advice and opinion of the

manager,"" and the widow wanted to adopt a boy and intimated her intention to the manager and requested him to come and see the ceremony

performed, and he declined to receive the letter, and the widow eventually adopted the boy without his consent, the adoption was not invalid for

lack of such consent, as such consent was not a condition precedent to the validity of the adoption. But, of course, it is unnecessary to rely on that,

as we are satisfied that P.W. 10 did approve of the adoption and did attend the function with his wife, as sworn to by D. Ws. 1 to 5 and 7. In the

end, therefore, we have no hesitation in agreeing with the learned District Judge that the adoption of the second defendant by the first defendant

was valid and binding on the plaintiff and other reversioners.

The last contention was that the learned District Judge erred in awarding compensatory costs to the first defendant by raking up his past record

of litigation, and relying on it for that purpose, though no compensatory costs could have been awarded in the circumstances of this suit, which

involved arguable and complicated questions of fact and law and could not be held to be frivolous and vexatious. We agree. The very fact that this

suit had to be argued strenuously on both sides, in the lower Court and here, and that the judgments have had to be claborate after weighing the

contentions on both sides, will show that the suit was not frivolous and vexatious, and that this was not a case fit for awarding compensatory costs.

The past activities of the plaintiff in filing suits, and his propensity to file suits for getting properties, should not, in our opinion, have been considered

for this purpose any more than the bad character of an accused can be considered for convicting him when there is no other evidence. So, we set

aside the order regarding compensatory costs.

In the end, therefore, we modify the judgment and decree of the lower Court by deleting the award for compensatory costs to defendant 1 and

confirm them in all other respects. We dismiss this appeal, except to the extent indicated above, with full costs (one set) of the contesting

respondents, defendants 1 and 2.