Kodavati Subamma and Another vs Kodavati Papayya

Devadoss, J.—The only question argued in this Second Appeal is whether Ex. I is a will. The Subordinate Judge has held that Ex. I is not a

will but an Anumathipatra, an authority to adopt and therefore it required registration; and being unregistered it did not empower the 1st defendant

to make a valid adoption. The finding is that the 2nd defendant has been adopted by the 1st defendant. The only question therefore is whether the

1st defendant had authority to adopt. If Ex. I is a will then her authority to adopt would be unquestioned, if Ex. I is not a will then the authority to

adopt not having been given by an instrument in writing and registered would be of no use. Ex. I is headed as ""will executed on 18th May, 1918,

by Kodavati Pedarama Krishnamma''s son Bullayya, and the closing lines of the document are ""I am at liberty to cancel this will. This will is

executed on my free will relating to these things, while of a sound state of mind.

The contention of Mr. Somasundaram on behalf of the respondent is that this document is not a will and the Court should not attach importance

to a few expressions here and there that the document is a will. He contends that there is no disposition in the will and therefore it should not be

construed as a will. He relies upon two cases, one Santhana Sooramma v. Santhana Mangayya [1913] M.W.N. 199 and the other Tirugnanopal

v. Ponnammai Nadathi AIR 1921 P.C. 89. In the former case the executant addressed his wife in the second person and gave her certain

directions; in the second case the executant addressed his adopted boy in the second person and gave him a number of directions. In the former

case, a Bench of this Court held that the document was not a will, in the second case their Lordships of the Privy Council held considering the

general tenor of the document that it was not a will notwithstanding the use of the word ""will"" in the document. In both cases the construction

turned upon the expressions used in the will. As I have observed in another case, it is not proper to interpret one document in the light of the words

used in another document. Each document must be considered with reference to the words and expressions used in it, and if the document when

read as a whole gives an impression that the executant intended to dispose of his property by it and that it should take effect after his life, then,

whatever may be the words used in the document the general intention should not be overlooked in executing the terms of the document. In Ex. I, I

think the intention of the executant to devise the property to his wife is clear. The operative clause of the document is ""my whole property shall be

divided into two equal shares, one share being enjoyed by the adoptive mother and the other share by the adopted son. During her life-time, the

mother shall enjoy the said property to her own liking. After her death the whole property in respect of the said share shall pass to the adopted

son. I think these words clearly indicate that the executant did intend that his wife should get a benefit under the document. Under the Hindu Law,

the moment the adoption is made, the widow is divested of her estate and the adopted son gets the whole of the property. The adoptive mother

will be entitled thereafter only to maintenance. In order to avoid trouble in future the executant of Ex. I provided that in case of disputes between

his wife and the adopted boy, the adoptive mother should have half of the property for her life. I think from the words of the document, the

intention to devise property to the wife can be clearly gathered. As I said the main thing to be considered in a document of this kind is whether the

executant had an intention to devise his properties to any one; in other words whether the will contains clear words as to the testamentary intention

on the part of the executant. Beading Ex. I as a whole I have no hesitation in holding that it is a will. This finding necessarily involves the

consequence that the 2nd defendant''s adoption is a valid one.

In the result the Second Appeal is allowed and O.S. No. 105 of 1919 is dismissed with costs throughout.

In S.A. Nos. 1049 and 1050 of 1922.

JUDGMENT

In consequence of the finding in the connected case S.A. No. 1048 of 1922 that the adoption is a valid one, these appeals also are allowed but

in the circumstances it is unnecessary to allow costs to the appellant.

The memorandum of objection is not pressed and is dismissed.