Subramania Chettiar and Another vs Sankara Velayudam Chettiar

Krishnan Pandalai, J.—The question in this appeal is whether a disposition by way of bequest by a Hindu of portions of the family property

in favour of his deceased brother''s widow for life with remainder absolutely to her daughter can be held to be ratified by his adopted son when it is

found that this and other dispositions of family property were made in pursuance of an arrangement made by the adoptive father with the natural

father of the boy whom he wished to adopt in consideration of the adoption and it is also found that the adopted son has ratified all the other

dispositions forming part of the same arrangement and has not questioned the disposition in dispute for a period of more than twenty years after

attaining majority.

The facts are fully stated in the judgments of the District Munsif and the learned Subordinate Judge. One Veerabahu died in 1889, having a short

time before his death adopted the present respondent and at the time of the adoption having made, in pursuance of an arrangement with the

respondent''s natural father, certain dispositions by way of two wills, Exs. A and B, in respect of his family property. The substance of the

arrangement was that he set apart certain properties for the maintenance of his two wives and his brother''s widow for their lives, gave certain other

property absolutely to his brother''s daughter, and provided that the brother''s daughter should take the property given for maintenance to the

brother''s widow after the laser''s death. He also set apart certain property for charity and left the rest of the estate to the son who was to be

adopted. The brother''s daughter (appellant''s mother) died in 1918. The suit was brought in 1921 by the appellants because the respondent, who

had attained majority in 1899 and till then raised no dispute about the dispositions in the father''s wills and had ratified and affirmed them so far as

other dispositions are concerned, began to interfere with the appellant''s possession of the property in dispute soon after the death of Veerabahu''s

brother''s widow who had been in possession till her death in 1921. So far as is now material, the appellant-plaintiff urged that the respondent-

defendant had accepted and affirmed the wills and attested a sale deed for property conveyed under the wills to the plaintiff''s mother and

grandmother and that the respondent is therefore estopped from questioning the dispositions in the wills. The respondent, after contending that the

wills were invalid as against him as they related to ancestral property, contended that he had not accepted or affirmed those dispositions because

he had attested the sale deed mentioned in the plaint without knowing its contents. The first and fourth issues raised two questions, the former as to

the validity and binding character of the wills and the latter as to estoppel by the defendant''s conduct. In dealing with these issues both the District

Munsif and the Subordinate Judge dealt with the long period of thirty-two years which had elapsed since Veerabahu''s death before the suit and

the acts of the defendant-respondent which showed that at the time of the adoption of the respondent, Veerabahu and the respondent''s natural

father had agreed to the dispositions of the wills as a just provision for the two branches of the family and also that the wills were acted upon during

this whole period and that the respondent himself had accepted and affirmed their validity by attesting a sale deed by the plaintiff and his mother

and grandmother of the properties left to their branch to a stranger and by entering into an arrangement for managing the charities established by

the wills with the other branch of the family. They therefore held that both by virtue of the agreement between the father and Veera-bahu at the

time of the adoption and also by virtue of the defendant''s conduct in ratifying the dispositions of the wills after Veerabahu''s death the defendant-

respondent is estopped from contesting the 1st plaintiff-appellant''s rights. These judgments were pronounced in December, 1923 and January,

1925. The respondent filed a second appeal to this Court in September, 1925. Before the appeal came on for hearing before Anantakrishna Aiyar,

J., in August, 1929, the decision of the Privy Council in (1927) L.R. 54 I.A. 248 (Privy Council) . was pronounced in. March, 1927, and was

reported in the same year. In view of this decision which reversed the decision of this Court in Krishnamurthi Aiyar v. Krishnanmrthi Aiyar (1924)

49 M.L.J. 252. the learned Judge thought that the Lower Courts had failed to appreciate clearly the points for consideration and he therefore

called for findings on three matters, (1) the exact nature of the arrangement entered into at the time of the adoption, (2) whether the defendant is in

any way equitably estopped from claiming the properties, and (3) whether the defendant has in any way ratified the arrangement, if any, come to at

the time of the adoption. Another learned Subordinate Judge returned findings on these issues. As to the arrangement he found that Veerabahu and

the respondent''s natural father at the time of the adoption of the respondent entered into an arrangement whereby the natural father consented to

the bequests under the two wills and agreed to the respondent taking the properties undisposed of by them. On the question of ratification he found

that the above described arrangement as well as the bequests made by the wills were accepted by the respondent as valid. He went on to say that

it was not a case of ratification in the strict sense as the bequests evidenced by the wills were not made on behalf of the respondent, but he added

that nevertheless the defendant can (must) be held to have ratified his natural father''s consent to abide by the bequests made in the two wills. On

the question of estoppel he held that there was no estoppel in the proper sense because the respondent had made no representation on which the

appellant or his predecessors-in-title had acted to their prejudice. After recording these findings which was all that he was required to do, the

Subordinate Judge went on to consider the validity of the wills in view of the recent decision of the Privy Council, and in the end opined that the

two wills are valid only to the extent of the bequests made in favour of Veerabahu''s wife and the brother''s widow. This was an opinion on a

question of law and was as such not binding on the learned Judge in second appeal.

The learned Judge in second appeal held that according to the decision in (1927) L.R. 54 I.A. 248 (Privy Council) . the dispositions of the two

wills, although they were assented to by the respondent''s natural father, were not binding on the respondent so far as they went beyond the

provisions for his own wives and his brother''s widow who was entitled to maintenance. In short the wills were invalid to the extent of the

dispositions therein contained in favour of Veerabahu''s brother''s daughter, the appellant''s mother. To this extent we agree with the learned Judge.

But this does not dispose of the case because the respondent would be bound by the dispositions if he had, as found by the Subordinate Judge,

ratified them by subsequent conduct. We are unable to agree with the learned Judge''s view as to the nature of this finding and its effect upon the

case. He says that the finding on the question of ratification is against the appellant and in favour of the respondent so far as the suit properties are

concerned. In other words he limited the effect of the ratification to the dispositions other than that in respect of the suit properties. There is no

doubt, according to the decision of the Privy Council in Ramasami Aiyan v. Venkata Ramaiyan, (1879) L.R. 6 IA. 196 : ILR 2 M. 91 (P.C.). that

invalid dispositions by an adoptive father at the time of the adoption and in consideration of it may become binding on the adopted son if he

subsequently ratines them and this was recognised by the learned Judge. Unless, therefore, his view that the respondent''s ratification though it

affected the other dispositions of the will did not affect the disposition of the property now in dispute can be supported, that disposition would be

binding on the respondent, its original invalidity notwithstanding. Whether a ratification is of a whole transaction or arrangement or only of a

particular portion of it is essentially a question of fact. If there is evidence upon which the Subordinate Judge could have found that there had been

ratification of the entire arrangement in pursuance of which the wills were executed, his finding that they were ratified as a whole could not be

disturbed in second appeal. We have carefully examined the finding of the Subordinate Judge and we are unable to see in it any justification for any

distinction so far as ratification is concerned between the dispositions of the other properties and the disposition of the property now in dispute.

The Subordinate Judge expresses himself as above stated quite generally in that portion of his judgment, where he records his finding as to

ratification. We have already stated that the Subordinate Judge''s view as to the invalidity of the wills in respect of this property was based upon his

view of the decision in Krishnamurthi Aiyasr''s case.1 As to this he bases his opinion upon what he considers to be the view of the Judicial

Committee, namely, that the doctrine of ""approbate and reprobate"" is not applicable. Their Lordships were not in this passage referring to

ratification at all. They were simply enforcing the view that the adopted son cannot be defeated by an invalid disposition on the ground that he is

approbating and reprobating. They point out that the only thing which he approbates is his adoption which has the result of making him entitled to

all the property of the family which had not been validly alienated away. Nor, can he therefore be said to be reprobating a disposition which he

need not reprobate at all but which is simply invalid against him by reason of his having become a member of the family. This explanation of the true

ground of the adopted son''s right to disregard invalid dispositions made by the adoptive father at the time of the adoption is entirely independent of

and does not affect the question of ratification. In other words it is not affected by the doctrine enunciated in the Venkata Ramaiyan''s case that,

even though a disposition by the adoptive father be such that the adopted son may disregard it, he may, by his subsequent conduct of affirming

those invalid dispositions, put it beyond his power to disavow them. The latter is the question in this case. The finding, so far as it is one of fact, of

the Subordinate Judge being that the respondent had ratified and affirmed the bequests under Exs. A and B, that finding in our opinion was binding

on the Second Appellate Court if there were evidence to support it. In our opinion, there was ample evidence to support the finding that the

respondent had affirmed the whole of the arrangement and dispositions covered by the two wills, Exs. A and B. It is not merely that for more than

twenty years after he attained majority he did not question them. So long ago as 1892, the appellant''s mother on her attaining majority had got

possession in pursuance of the wills from the respondent''s natural father of the properties given to her absolutely under the will. The respondent

has not questioned this and has said in the box he has no intention of questioning it. It is impossible for him to do so at this distance of time. In

1918, he attested a sale deed by the appellant, his mother and grandmother of some property left to them on exactly the same terms as the

property now in dispute, that is, to the grandmother for life and afterwards to the mother absolutely. In 1920 the respondent and the appellant

entered into mutual agreements for the management of the charities established by the wills. From all this and from the oral evidence of the

respondent himself there was sufficient evidence on which the Subordinate Judge might have come to the conclusion that the respondent in

affirming and accepting the arrangements made by his natural father affirmed them in their entirety without leaving any exception in respect of the

property now in dispute. In this view of the case the learned Judge should have upheld the finding and dismissed the appeal.

But the learned Advocate for the respondent has urged that the ratification by an adopted son which might validate an invalid disposition

according to the decision in Ramasami Aiyan v. Venkata Ramaiyan is not what is proved in this case. He argued, (1927) L.R. 54 LA. 248 : ILR

SO M. 508 : 53 M.L.J. 57 (P.C.). that the ratification in such a case must have all the ingredients of a valid contract, that is, consideration and the

rest and that it is not enough that a mere unilateral affirmation not addressed to the party benefited by the disposition is made; (2) that an

arrangement entered into by a natural father at the time of his son''s adoption is not a voidable transaction, like a widow''s or guardian''s alienation

which requires to be set aside by the reversioner or ward but is void and remains void until it is validated by an independent and valid act of the

adopted son. The argument was that the ratification in this case does not satisfy the above requirements but amounts at the most to the exercise by

the respondent of an option not to question certain matters which must be limited to those particular matters; and (3) that such ratification as there

was in this case was made at a time when such agreements between the adoptive father and natural father were considered valid so long as they

were reasonable and was therefore made in ignorance of the respondent''s rights and therefore cannot avail after the decision in Krishnamurthi

Aiyar''s case.1 We may at once concede that an arrangement between an adoptive and a natural father disposing of the former''s family property in

violation of the rule laid down in Krishnamurthi Aiyar''s case1 is not voidable in the ordinary sense of the term, but that it is void against the

adopted son. At the same time there can be no doubt that such arrangements are capable of validation by the party affected, the adopted son. In

the words of their Lordships in Ramasami Aiyan v. Venkata Ramaiyan, (1879) L.R. 6 LA 196 : ILR 2 M. 91 (P.C.). ""the agreement of the natural

father which has been set out was not void but was at the least capable of ratification when his son came of age."" The word ""void"" in this context

has been explained in Krishnamurthi Aiyar''s case1 as meaning not an agreement that was funditus null, one incapable of producing any legal result.

It is not that; but so far capable of legal results as to be capable of ratification by the son when he comes of age. But this conclusion does not

materially advance the respondent''s case. The question still remains whether the respondent in this case validated his adoptive father''s disposition

by his own ratification after he came of age. That was the precise question which was remitted by the learned Judge and found as we have

observed in favour of the appellant. We have not been referred to any authority to show that such ratification must necessarily be accompanied by

all the ingredients of a valid contract and must be made between the adopted son and the party benefited by the invalid disposition. On the

contrary, the agreement of 19th August, 1871, in Venakta Ramaiyan''s case,4 which, according to their Lordships, was a sufficient ratification was

one between the adopted son and the widow, the alienor, and not between him and the alienees. Still it was held that the alienations were

sufficiently ratified. Nor are we able to see why, if it is open to the adopted son by his own act to ratify and validate arrangements made by his

adoptive father, an act amounting to an election to hold it good, sufficient according to the doctrine enunciated by the Privy Council in Rangaswami

Gounden v. Nachiappa Gounden followed and applied in Ramakotayya v. Viraraghavayya ILR (1928) 52 M. 556 : 56 M.L.J. 755. should not be

sufficient for that purpose. In this case the acts by which the respondent affirmed some of the dispositions of Veerabahu''s wills were acts to which

the appellant and his mother were parties (Exs. C and C-l). The ratification in this case, therefore, cannot be objected to on the ground that it was

made to a third party. Lastly, it cannot be said that the respondent was ignorant of his rights at the time of ratification because the decision in

Krishnamurthi Aiyar''s case1 was not then given. The question to what extent arrangements made by the natural father at the time; of the adoption

are binding on the adopted son had engaged the Courts long; prior to the decision in (1879) L.R. 6 I.A. 196 (Privy Council) In that case their

Lordships left the general question open, saying that it was not altogether unattended with difficulty and that the decision of the Bombay High Court

in Chitko Raghunath Rajadiksh v. Janaki (1874) 11 Bom. H.C.R. 199. decides that an agreement on the part of the father that his son''s interests

shall be postponed to the life interest of the widow is valid and binding. The numerous decisions considered in Krishnamurthi, Aiyar''s case1 reflect

the ebb and flow of judicial opinion on this topic and they leave no room for the view that the respondent could have been ignorant of his right to

question the disposition of the wills in this case assented to by his natural father. The respondent was certainly ignorant of the particular decision

which their Lordships of the Privy Council delivered in Krisknamurthi Aiyar''s case. He could not have anticipated it, but that could not absolve him

from the consequence of his previous and deliberate acts done at a time when the adopted son''s rights were well known, and if he, knowing of

such rights as the Courts would then have upheld, elected to ratify the arrangement and the dispositions under the wills, he cannot now be allowed

to go back upon it. The result is in our opinion that the learned Judge should have dismissed the second appeal. We set aside the decision

appealed from and restore the decree of the District Munsif with costs throughout.