1921 JTR(SC) 43
1922 AIR(PC) 162 ; 1920 48 LawReportsInd.App. 482
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD ATKINSON, AND SIR JOHN EDGE.
JAGANNATHA BHEEMA DEO - Appellant
Versus
KUNJA BEHARI DEO - Respondents
On appeal from the High Court at Madras.
Decided On : May. 10. 1921.
A document granting a spouse the authority to adopt a child and manage an estate, without any testamentary disposition of property, is a power to adopt rather than a will and must be registered under Section 17 of the Indian Registration Act, 1877.
Act Referred :ANDHRA PRADESH RULES FRAMED UNDER REGISTRATION ACT: S.17
(A) Indian Registration Act, 1877 - Section 17 - Nature of a document granting power to adopt - Whether a document authorizing a widow to adopt a son and manage an estate constitutes a will or a mere power to adopt - If the document contains no disposition of property and only grants a present authority to adopt, it is not a will and requires registration under Section 17 to be operative.
(B) Management of estate - Power to manage an estate given as incidental to the power to adopt does not transform the document into a will.
Facts of the case:
A suit was brought by an adopted son to obtain possession of an estate. The adoption was based on a document executed by the deceased husband in favor of his wife, which was described as a will. The document stated the husband's consent for the wife to adopt a son at her pleasure and to manage the estate. The respondent contended that the document was not a will but a power to adopt, which required registration under the law.
Findings of Court:
The court held that the operative contents of the document were limited to the consent for adoption and the management of the estate. The references to property were merely consequences of the guardianship of the wife and did not establish the character of a will.
Issues: Whether the document executed by the deceased was a will or a power to adopt, and consequently, whether it required registration under Section 17 of the Indian Registration Act, 1877.
Ratio Decidendi: A document that provides a present authority to a spouse to make an adoption and manage an estate, without any independent disposition of property, is a power to adopt and not a will. Such an instrument must be registered under Section 17 of the Indian Registration Act, 1877, to be valid.
Result: Appeal dismissed with costs.
(B) Management of estate - Power to manage an estate given as incidental to the power to adopt does not transform the document into a will.
Facts of the case:
A suit was brought by an adopted son to obtain possession of an estate. The adoption was based on a document executed by the deceased husband in favor of his wife, which was described as a will. The document stated the husband's consent for the wife to adopt a son at her pleasure and to manage the estate. The respondent contended that the document was not a will but a power to adopt, which required registration under the law.
Findings of Court:
The court held that the operative contents of the document were limited to the consent for adoption and the management of the estate. The references to property were merely consequences of the guardianship of the wife and did not establish the character of a will.
Issues: Whether the document executed by the deceased was a will or a power to adopt, and consequently, whether it required registration under Section 17 of the Indian Registration Act, 1877.
Ratio Decidendi: A document that provides a present authority to a spouse to make an adoption and manage an estate, without any independent disposition of property, is a power to adopt and not a will. Such an instrument must be registered under Section 17 of the Indian Registration Act, 1877, to be valid.
Result: Appeal dismissed with costs.
Adoption - The appellant argued that this case was distinguishable because the document in question was simply an authority to adopt.
Management - The appellant argued that this case was distinguishable as the document did not contain a power to manage the estate.
Applicability - The appellant contended that this case, which was referred to in the High Court, was not applicable to the present matter.
Solicitor for appellant: Douglas Grant.
Solicitors for respondent: Chapman-Walker & Shephard.
Judgement
Appeal (No. 55 of 1920) from a judgment and decree of the High Court (September 12, 1918) affirming a decree of the District Judge of Ganjam.
The suit was brought in 1916 by the appellant, claiming to be the adopted son of Brojo Kishore Deo who died on September 3, 1906, to obtain possession of the estate. The deceased was a Hindu governed by the Mitakshara, and on August 14, 1906, had executed a document headed by a statement that it was a will in favour of the executants wife, and proceeding in the terms set out in the judgment of the Judicial Committee. In 1915 the widow adopted the appellant to her deceased husband. The power to adopt, according to the case made in the plaint, was given orally, also by the document above mentioned. The defendant by his written statement denied that any authority to adopt was given, and contended that the document was not a will but a mere power to adopt, and as such required registration under s. 17 of the Indian Registration Act, 1877 ; he pleaded further [@ page
Law. Rep. 48 Ind. App. 482 ( 1920- 1921) Jagannatha Bheema Deo V. Kunja Behari Deo
239
LRIA 483] that the estate had vested in him before the adoption was made and was not devested by the adoption.
The District Judge dismissed the suit; he found that no. oral authority had been given, and that the document was not a will, and was consequently inoperative for want of registration.
The High Court affirmed the decision. The learned judges were of opinion that the document contained no disposition of property, the power of management being given merely as incidental to the power to adopt; upon the question of the devesting of the estate they held in favour of the plaintiff.
1921. May 10. Kenworthy Brown (De Gruyther K.C. with him) for the appellant. The document was a will for the purpose of s. 17 of the Registration Act, and consequently did not require registration. Not only does it clearly purport to be a will in favour of the executants wife, but it provides that she is to have the management of the estate, and that the heirs are not to raise objection. The right of management given could be exercised by the widow before she chose to adopt; it cannot therefore be regarded as merely incidental to the power to adopt. Even if the instrument was ineffective by reason of the Madras Impartible Estates Act (Mad. Act II. of 1904) it was none the less a will within the meaning of s. 17. It was within the definition of a will in s. 3 of the Act V. of 1881 a " legal declaration of the intention of the testator with respect to his property." The decision of the Board in Bhoobun Moyee Debia v. Ram Kishore Acharj (( 1865) 10 Moo. I. A. 279, 309.) is distinguishable, as the document there in question was in terms simply an authority to adopt. So also in Somasundara Mudali
v. Duraisami Mudaliar (( 1903) I. L. R. 27 M. 30.) the document contained no power to manage the estate, nor any other disposition of it. Seshamma v. Chennappa (( 1897) I. L. R. 20 M. 467.), referred to in the High Court, is not applicable.
Hon. Sir William Finlay K.C. and Parikh for the respondent.
The document is merely an authority to adopt, with powers ancillary to that authority; it is not a will and accordingly, having regard to ss. 17 and 49, conferred no power to adopt in the absence of registration.
[They were stopped.]
The judgment of their Lordships was delivered by
VISCOUNT HALDANE. This case is an important one, and but for a preliminary point on which it turns, might have been a long one. There is, however, a preliminary question which goes to the root of the appeal. Sri Sri Brojo Kishoro Deo executed a document in favour of his wife on August 14, 1906. He called it a will, in the body of the document; but its only operative contents are to be found in the words which follow "I have been laid up with severe bodily illness for about the last seven months. Consequently having had serious misgivings, and not having until now been blessed with an heir-apparent for want of divine favour, I have con sented to your adopting a son at your pleasure and conducting the management of the estate in the best manner. None of my heirs shall have cause to raise disputes touching this matter. This will has been executed with my consent."
It will be observed that what is said by the writer of the document is that having had serious misgivings, and not having been until now blessed with an heir-apparent, he has consented to his wife adopting a son at her pleasure, and conducting the management of the estate in the best manner. That standing by itself appears to their Lordships to be no more than a present authority to the wife to make
Law. Rep. 48 Ind. App. 482 ( 1920- 1921) Jagannatha Bheema Deo V. Kunja Behari Deo
240
an adoption, and there is nothing else of substance in the document. It may be that the writer was in a position under the law applicable to give her such power, but whether he was or was not, he purports to give her nothing else; for the references to property that occur in it are no more than consequences of the guardianship of the wife, and the character of being a will is not established independently of these. Their Lordships therefore agree with the learned judges in the High Court in thinking that the document is not a will, but only a power to adopt, and as such ought to have been registered as being an authority to adopt a son, not conferred by a will within the meaning of s. 17 of the Indian Registration Act, 1877.
Their Lordships will, therefore, humbly advise His Majesty that this appeal should be dismissed with costs.