1931 JTR(SC) 14
1931 AIR(PC) 109 ; 1930 58 LawReportsInd.App. 148 ; 1931 33 BomLR 937 ; 1931 MWN 568 ; 1932 35 LW 54
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD THANKERTON, LORD MACMILLAN, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
KRISHNA RAO - Appellant
Versus
SUNDARA SIVA RAO - Respondents
On Appeal from the High Court at Madras.
Decided On : Feb. 11. 1931.
A document declaring a person entitled to property upon the executant's death has testamentary effect even if it fails as an adoption deed due to lack of ceremony or is registered in a miscellaneous register, provided the intent for succession is clear.
Act
Referred
:Registration Act, 1908
Hindu Wills Act
(A) Registration Act, 1908 - Testamentary documents - Registration in miscellaneous register - A document expressing that a person shall be entitled to the entire property of the executant upon death has testamentary effect, regardless of whether it was registered in a miscellaneous register instead of the register for wills, provided the intent is clear from the terms and surrounding circumstances.
(B) Adoption - Validity - Formal ceremony - For an adoption to be valid, a formal ceremony is essential; a document alone cannot constitute an adoption or serve as an authority to adopt if the ceremony is omitted.
(C) Conveyance - De praesenti - A document that refers to succession upon death does not purport to convey property immediately (de praesenti).
Facts of the case:
A person without issue executed a document in favor of a relative he had raised, stating that he had adopted the relative and that the relative should be entitled to his entire property as a son. The document was registered in a miscellaneous register. No formal adoption ceremony took place. Following the executant's death, the beneficiary entered into possession and subsequently sold and mortgaged portions of the property to discharge the deceased's debts. The nearest reversioner challenged the validity of the adoption and the subsequent transfers.
Findings of Court:
The document did not convey property immediately nor did it constitute a valid adoption due to the absence of the required formal ceremony. However, the final sentence of the document, granting entitlement to the property, clearly referred to succession upon death and thus possessed testamentary effect.
Issues: Whether a document declaring a person as a son and entitled to the executant's property, executed without a formal adoption ceremony and registered in a miscellaneous register, has testamentary effect.
Ratio Decidendi: The court held that where the terms of a document and the surrounding circumstances indicate an intention to secure the succession of property upon death, the document has testamentary effect. The lack of a formal adoption ceremony precludes it from being an adoption deed, and the registration in a miscellaneous register is insufficient to outweigh the clear testamentary intent expressed in the document.
Result: Appeal allowed.
(B) Adoption - Validity - Formal ceremony - For an adoption to be valid, a formal ceremony is essential; a document alone cannot constitute an adoption or serve as an authority to adopt if the ceremony is omitted.
(C) Conveyance - De praesenti - A document that refers to succession upon death does not purport to convey property immediately (de praesenti).
Facts of the case:
A person without issue executed a document in favor of a relative he had raised, stating that he had adopted the relative and that the relative should be entitled to his entire property as a son. The document was registered in a miscellaneous register. No formal adoption ceremony took place. Following the executant's death, the beneficiary entered into possession and subsequently sold and mortgaged portions of the property to discharge the deceased's debts. The nearest reversioner challenged the validity of the adoption and the subsequent transfers.
Findings of Court:
The document did not convey property immediately nor did it constitute a valid adoption due to the absence of the required formal ceremony. However, the final sentence of the document, granting entitlement to the property, clearly referred to succession upon death and thus possessed testamentary effect.
Issues: Whether a document declaring a person as a son and entitled to the executant's property, executed without a formal adoption ceremony and registered in a miscellaneous register, has testamentary effect.
Ratio Decidendi: The court held that where the terms of a document and the surrounding circumstances indicate an intention to secure the succession of property upon death, the document has testamentary effect. The lack of a formal adoption ceremony precludes it from being an adoption deed, and the registration in a miscellaneous register is insufficient to outweigh the clear testamentary intent expressed in the document.
Result: Appeal allowed.
Solicitor for appellant: H. S. L. Polak.
Judgement
Appeal (No. 33 of 1929) from an order and decree (October 11, 1924, and October 12, 1926, respectively) of the High Court, reversing a decree of the Subordinate Judge of Masulipatam (November 15, 1920).
The question for determination in the appeal was whether a document dated December 16, 1912, had, as the appellant contended, testamentary effect.
The terms of the document, and the circumstances in which it was executed, appear from the
Law Rep. 58 Ind. App. 148 ( 1930- 1931)
Krishna Rao V. Sundara Siva Rao 35
judgment of the Judicial Committee, which states also the effect of the judgments delivered by the trial judge, and on appeal by Coutts Trotter C.J. and Ramesam J.
1931. Jan. 20. Subba Row for the appellant. The respondents did not appear.
Feb. 11. The judgment of their Lordships was delivered by
LORD THANKERTON. This appeal relates to the succession to the immovable property of the late Krishna Rao, a Brahmin and a karnam, who died on April 20, 1913, without issue, but leaving a widow.
The suit was instituted on December 16, 1918, by Kruttiventi Surayya, who admittedly is the nearest reversioner to the estates after the death of the widow, against the widow, as defendant No. 1, Vempati Satyanarayanamurti, as defendant No. 2, and other defendants, who were the purchasers under two deeds of sale and the mortgagee under a mortgage deed executed by defendant No. 2 in the years 1914 and 1916. Defendant No. 2 is now dead, and is represented by the appellant.
A few months before his death the late Krishna Rao, while he was ill, executed a document in favour of defendant No. 2-, who was a son of his wifes sister, and whom he had brought up. The material part of that document, which is dated December 16, 1912, is as follows "-As I have had no issue I have brought you up while you were young and have adopted you and celebrated your upanayanam, etc., and have chosen you as a son ; so I have communicated this fact to the revenue authorities and got your name registered for the office of the karnam held by me. Further, you shall be my son and you shall be entitled to my entire property as a son."
The deceased presented the document for registration, and it was registered in Book IV., " Miscellaneous Register," on December 23, 1912, under the Registration Act (XVI. of 1908).
After the death of Krishna Rao mutation was effected in the name of defendant No. 2, and he entered on possession of the properties of the deceased. In 1914 defendant No. 2 sold two portions of the properties and in 1916 he borrowed money on mortgage ; it has been held by both Courts below as established that the proceeds of these sales and the mortgage were applied by him in discharge of debts of the deceased.
In this suit the plaintiff asked for a declaration (a) that the adoption alleged by defendant No. 2 was not true and valid, and (b) that the sale deeds and mortgage were not valid and could not bind the plaintiffs right.
It is now undisputed that there was in fact no valid adoption of defendant No. 2 by the deceased, but the Subordinate Judge of Masulipatam, who tried the case, appears to have held that the document was valid and operative to convey the properties to defendant No. 2, and that, as the plaintiff had failed to have it set aside within three years from 1913, when he came to know of it, he was barred by limitation from maintaining the present suit. He, therefore, dismissed the suit. The learned judge does not express any view as to whether the document is of a testamentary character.
On an appeal by the plaintiff the High Court of Judicature at Madras held, on October 1, 1924, that the document was neither a will nor a de praesenti conveyance of the properties, but was merely an " adoption deed," which conferred no title on defendant No. 2, and remitted to the Subordinate Judge to submit findings as to whether the deeds of sale and the mortgage deed were binding on the plaintiff and whether the alienees were entitled to compensation for any improvements made by them on the properties. The learned Subordinate Judge on July 8, 1925, pronounced findings to the effect that the
Law Rep. 58 Ind. App. 148 ( 1930- 1931)
Krishna Rao V. Sundara Siva Rao 36
deeds were not binding on the plaintiff, and that the alienees were not entitled to any compensation. By formal decree dated October 12, 1926, the High Court accepted the findings, and ordered and declared that the alleged adoption of defendant No. 2 was not true and valid,, and that the deeds were not binding on the deceased plaintiffs representatives after the death of the widow, defendant No. 1, the question of any equities that might arise when the deceased plaintiffs representatives should seek to obtain possession of any of the lands sold under these sale deeds being left open.
The present appeal is taken by the appellant as repre senting defendant No. 2 against the decree of October 12, 1926.. At the hearing before their Lordships the respondents were not represented, and the main contention of the appellant was that the document of December 16, 1912, was of a testamentary nature and entitled the appellant to the succession irrespective of the question of adoption, although the upbringing of the appellant by the late Krishna Rao was a circumstance to be regarded in considering whether the document was intended to have testamentary effect.
In their Lordships opinion the document does not purport to convey anything de praesenti, and, further, it cannot be read either as being itself intended as an act of adoption or as being an authority to adopt. The writer, a Brahmin and a karnam, must have been well aware that the document could not of itself constitute the adoption—a formal ceremony being essential for that purpose—and its terms refer to adoption in the past tense and cannot be read as an authority to adopt in the future. Moreover, it is reasonable to assume that the writer must have been fully aware of the fact, now admitted, that no actual adoption had taken place, and also to assume that his anxiety was to do all he could to secure the succession of defendant No. 2, whom he had brought up and treated as a son, to his office as karnam, which would open on his death. The writer was ill at the time, and died about four months later. Their Lordships are of opinion that the last sentence of the document clearly refers to succession to the writers entire property on his death, and has testamentary effect in favour of defendant No. 2, who is now dead, and is represented by the appellant. The document, having been executed in the mofussil, is outside the Hindu Wills Act , and requires no formalities. While it is true that a will should be registered in Book III., this point is insufficient, in their Lordships opinion, to outweigh the terms of the document itself and the other surrounding circumstances.
Accordingly their Lordships will humbly advise His Majesty that the appeal should be allowed, that the decree of the Subordinate Judge of November 15, 1920, should be restored, the appellants costs in this appeal and in the High Court to be paid by respondents 1 to 3 in this appeal.