Subbarayar and Others vs Subbammal and Others

The principal questions raised in this case are, first, whether the will (Exhibit I) was executed by the deceased Kuppayyar when he was of sound

mind; secondly, whether the second defendant was the validly adopted son of Kuppayyar; and thirdly, if the second defendant was not validly

adopted, whether he is nevertheless entitled to take the property under the will as the persona designata.

The District Judge has found the first question in favour of the defence, and we have no doubt that that finding is correct. That the will was

executed by Kuppayyar is really beyond dispute. It is sufficient on this point to refer to the Sub-Registrar''s evidence, before whom the testator

Kuppayyar admitted the execution, and the fact that the fourth defendant, the nearest reversioner and father of the plaintiffs himself, has attested the

execution by Kuppayyar. As to the state of mind of the testator at the time of his execution of the will, it is quite true that he was then in extremis,

so that it lies on the party propounding the will to make out by clear and satisfactory evidence that the testator was in a fit and proper state of mind

to understand and appreciats what he was doing. This has, in our opinion, been most satisfactorily established by the evidence called on behalf of

the defence. There is first the evidence of the writer of the will (whom there is no ground whatever for discrediting) which shows that it was on the

testator''s own instructions that he drafted the will, and that those instructions were given spontaneously. Then there is the evidence of the two

village officers--maniem and karnam--equally satisfactory witnesses which proves that the testator was fully aware of what he was doing when ho

signed the will, and their present evidence is corroborated by the statements made by them contemporaneously before the Sub-Registrar. The

evidence of this latter officer is to our mind conclusive on the point. He questioned the testator regarding the will andsatisfied himself by his own

observation as well as by the evidence of the village officers whom he examined in accordance with a rule of the registration department, that the

testator was in the full possession of his senses. We consider the attempt made to impute corrupt conduct to the Sub-Registrar was entirely without

foundation and altogether unjustifiable. Exhibit F that was put forward to suggest that he had received an illegal gratification in the matter of the

registration is a patent concoction, it bears a date corresponding with the 27th February, the day on which the document was presented, and

aeceptad for registration, and the statement therein made that the Sub-Registrar had then been postponing return of the document from day to day

is intrinsic evidence of its fabricated character. All the above direct evidence in favour of the testator''s state of mind is confirmed by the fact that

the testator signed his name a number of times in the schedule to Exhibit I in the presence of the Sub-Registrar; and those signatures arc all natural

and in their appropriate places indicating that the testator was in the possession of his faculties. It is scarcely necessary to add that the fourth

defendant would not have attested the document, which cut off the reversionary right of himself and his sons, unless he was fully convinced that the

testator was in his proper senses. The evidence of the plaintiff''s seventh eighth and fifteenth witnesses to which our attention was specially drawn

does not meet the evidence for the defence to which we have referred. It is vague and inconclusive even if true, but in our opinion it is entirely

untrustworthy. Turning to the provisions of the will they are simple and required no great effort of the mind to grasp--in effect the''terms amount to

nothing more than that the second defendant should take the whole property, protect the two remaining members of the family and maintain the

charities. We have, there�fore, no hesitation in deciding the first point against the plaintiffs.

Passing next to the question of adoption, we are unable to agree with the District Judge that the giving and taking said to have taken place on the

morning of the 27th February 1896 before the testator''s death is true. If there had been such a giving and taking, reference must have been made

to the fact in the subsequent documents (Exhibits D, C and B) where the question of the adoption was the prominent one. On the other hand, the

adoption referred to in those documents was one made three years before Kuppayyar''s death. We must, therefore, reject the case of a gift and

acceptance on the 27th of February 1896. Nevertheless, we are satisfied that the second defendant was validly adopted. It appears from the will

itself that the second defendant had been treated as the adopted son for three years during which time he had resided not with his natural family,

but with the deceased, and Exhibit D shows what was done at the time the second defendant left his natural father. It contains a statement of the

widow and the mother of deceased, certified to by the natural father and by half a dozen independent persons that there was a "" vachadatta,"" that

is, a gift and acceptance of second defendant, but unaccompanied with the performance of datta homam which was to be performed at his

upanayanam or thread ceremony. This statement was taken in reference to a complaint made by the fourth defendant to the head of the mutt, to

which the parties were subject, and was made in the presence of the fourth defendant who, so far as the evidence goes, has never contradicted it

until he was examined as a witness in this case. That statement too receives corroboration from the recitals in the will, the probabilities and other

evidence in the case. and as the datta homam involving, of course, a formal gift and acceptance has since been performed, the adoption of the

second defendant is now complete and valid. It is true that the will makes no reference in terms to the performance of datta homam by the widow.

But in the circumstances of the case the direction in the will that she should cause the second defendant''s upanayanam to be performed most

clearly implied that the datta homam should precede the upanayanam, so that the latter ceremony was that of an adopted son, the testator having

regarded the second defendant as such son. The case is within the principle of Venkata v. Subhadra ILR 7 Mad. 548 . There it was the giver in

adoption who had died before the datta homam and here it is the acceptor who had died; and this difference does not affect the principle. Though

no express issue was framed as to the factum of gift and acceptance three years before testator''s death, the question was distinctly raised in the

pleadings and was present to the minds of the parties at the trial and evidence was adduced thereon. Having arrived at this conclusion in favour of

the adoption, it is unnecessary to express any opinion on the question of persona designate, assuming that there was no adoption. The decree of

the lower Court is confirmed and this appeal dismissed with costs.