Kasturi Narasaraju vs Kasturi Satyavatamma and Others

Varadachariar, J.—This is a litigation arising out of disputes between an adopted son and the adoptive mother. The first defendant is the

widow of one Raghupathi who died in March, 1925, leaving a will (Ex. A) dated 25th February, 1925. The first defendant adopted the plaintiff,

who was her younger brother, on 1st May, 1930, and, at that time, the parties entered into an ante-adoption agreement. For reasons which it is

unnecessary to detail, the parties fell out and the plaintiff filed the suit out of which this appeal arises for a declaration that the ante-adoption

agreement was not binding upon him and sought consequential reliefs following from that declaration. The first defendant replied by impeaching the

validity of the plaintiff''s adoption. She contended that the adoption made by her was not authorised by the will, Ex. A, and that it was therefore

invalid. Various other questions were raised by the issues framed in the case; the question of the construction of the authority and the consequent

validity of the plaintiff''s adoption was raised by the first issue. The lower Court dealt with the first issue as a preliminary issue; and construing the

will as not giving the widow an authority to adopt in the events that have happened, it held the plaintiff''s adoption to be invalid and accordingly

dismissed the suit. Hence this appeal.

The only point for decision in the appeal is as to the true construction of the clause in the will (Clause 8) giving the widow power to adopt. We

may however refer to one grievance mentioned before us by the learned Counsel for the appellant in respect of the procedure adopted in the lower

Court. It was brought to our notice that in the issues as originally framed, there was an issue relating to estoppel, namely, issue No. 2. ""Whether the

defendants are not estopped from disputing the validity of the adoption"", but this was dropped when the issues were recast by the learned Judge,

on 14th November, 1936, with the result it was said that the plaintiff had been prejudiced by no evidence having been taken on this question of

estoppel. We do not see any basis for any grievance on this score nor is there much force in it. Neither in the grounds of appeal originally filed nor

in the additional ground subsequently filed do we find any objection raised to the course adopted by the lower Court in this respect. We may also

point out that the issue of estoppel should not have been raised on the pleadings at all, as observed by the learned Subordinate Judge. The deed of

adoption specifically states that the adoption was made in pursuance of the authority conferred by the husband''s will and paragraph 6 of the plaint

also stated that the adoption took place in pursuance of the authority contained in the will. If the will does not authorise the adoption, it seems to us

there is an end of the matter. There is no suggestion anywhere of any representation of oral authority by the widow and there is accordingly no

basis for the plea of estoppel. We do not therefore see any reason to allow any objection under this head to be raised at the hearing of the appeal.

Proceeding now to the construction of the will, we are of opinion that the construction placed by the lower Court on Clause (8) of the will is

correct. To understand the scheme of the will, it is necessary to remember that the testator had a daughter two or three years old, alive at the date

of the will. His wife was then pregnant and he provided in the will for the contingency of her giving birth either to a male child or to a female child.

In Clause (6), he provided that if she gave birth to a male child, she should manage the property till that child attained majority and then hand it

over to him. In Clause (7) he provided that if the wife gave birth to a female child she was to be married in the same manner as was provided for

the existing daughter in a previous clause. Then comes Clause (8) which runs as follows:

If a male child be born but it does not survive my wife Satyavati, she is to adopt a boy of her choice or a boy among my agnates, till the adoption

abides. The said adoptee is to take my estate in full ownership; and during his minority my wife shall be in possession of the estate.

It turned out that the wife gave birth to a daughter and it unfortunately happened that the pre-existing daughter as well as this daughter died

shortly afterwards. It need hardly be stated that these events which happened subsequent to the death of the testator cannot affect the construction

of the will.

Mr. Satyanarayana Rao, the learned Counsel for the appellant, has asked us to construe the will as conferring a general power of adoption on

the widow based on an anxiety of the testator that he should in any event be represented by a son, whether Aurasa or adopted. We do not think

that the language of the will can be so interpreted. We are not, by any means, satisfied that the testator desired that in all possible events, he should

be represented by a son. But even if we can impute any such intention to the testator, we have still got to see whether that intention is expressed or

can be clearly implied in the clause of the will. In Clause (7), he distinctly contemplated the contingency of the birth of a daughter to his wife. But he

does not follow up that contingency by providing for an adoption by his widow in that case. It is only a specific contingency that is provided for in

Clause (8) which confers the power of adoption, namely, the contingency of the child to be born being a male and its pre-deceasing the widow.

Cases like 10 CWN 921 (Privy Council) and 16 CWN 675 (Privy Council) relied on by the learned Counsel for the appellant are of no help to

him, because they dealt with a general power of adoption and only held that such a general power should not be unduly restricted nor treated as

exhausted by a single adoption. In Surendra Nandan v. Sailaja Kant Das Mahapatra I.L.R.(1891) 18 Cal. 385 and AIR 1937 292 (Privy Council)

, the Court had only to consider how far a general power was restricted by reference in the will to other considerations. The present case has, in

our opinion, to be determined with reference to the principles Laid down by their Lordships of the Judicial Committee in 18 CWN 554 (Privy

Council) and 24 CWN 274 (Privy Council) . In the latter case, Clause (4) of the will then in question (set out on p. 478) began with the words, ""If

by the will of Providence, no male or female child be born to me"" and in that contingency the testator conferred a power to adopt on his widow. It

actually happened that after his death, a female child was born to one of his widows. Dealing with the validity of an adoption made by a widow in

those events their Lordships observed (on p. 479) that whatever might be the strength of the presumption in favour of a Hindu''s desire to be

represented by an adopted son and though ""the Courts would not be astute to defeat an adoption not clearly in excess of the power"" it was not for

the Court unduly to strain the words of the will or to make a will for the testator; and their Lordships added that the opening words of Clause (4)

must be held to govern the other clauses and it was impossible without going outside the terms of the will to hold that in the events that had

happened, the power took effect. We are unable to see how the present case differs in principle from the case in 24 CWN 274 (Privy Council) .

Clause (8) of Ex. A begins with the words ""if a male child be born"" and it is only that contingency that is provided for. It is not possible to say that

the testator was not alive to the contingency of a daughter being born because Clause (7) has provided for it, and it is obvious that he has not

chosen to give his wife a power of adoption in that contingency. If we are to hold that even in that contingency the widow must have been intended

to be authorised to adopt, the Court would clearly be providing for a contingency which the testator left unprovided for. This is what their

Lordships held to be beyond the power of the Court, in 18 CWN 554 (Privy Council) . A case which seems to be practically on all fours with the

present is referred to by Sir D.F. Mulla as reported in Coryton 1, 42. - See Illustration (a) on page 520 of the eighth edition, of his book on Hindu

Law. But as that report is not available to us here, we do not propose to base our decision on the authority of that case. But for the reasons stated

above, we have come to the same conclusion.

We may add that the above construction does not, in our opinion, lead to any unnatural results nor is it inconsistent with the presumed intention

of a Hindu testator. It must be remembered that at the time of his death, the testator had a daughter alive. Even if another daughter should be born,

these daughters would in the ordinary course inherit the estate for their lives and after them any son or sons born to them or either of them would

succeed. We do not think that it is the general sentiment of any Hindu testator that his daughter''s son should be superseded by an adopted son.

The testator in the present case might well have thought that it was unnecessary to provide a power of adoption in the event of a daughter being

born because he might have been content to leave the estate to devolve on the daughters and the daughters'' sons. On the other hand, his making

provision for the contingency of a male child being born and pre-deceasing the widow is quite intelligible. As explained by the learned Subordinate

Judge the moment, a male child was born after the testator''s death, he would become the stock of descent and under the law as it stood at the

time, the daughters and their children would have been excluded by the gnati reversioners. It was therefore natural that he should have provided for

that contingency by directing his wife to make an adoption so that the property might remain in his own family.

We accordingly hold that the lower Court has come to a right conclusion. The appeal fails and is dismissed with costs of the first respondent.