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-appar