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1927 Supreme(SC) 33
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, LORD SALVESEN, AND SIR JOHN WALLIS.
KRISHNAMURTHI AYYAR - Appellant
Versus
KRISHNAMURTHI AYYAR - Respondents
On appeal from the High Court at Madras.
Decided On : Mar. 28. 1927.
Solicitor for appellant: H. S. L. Polak.
Solicitors for respondents: Douglas Grant & Dold.
An adopted son possesses the same rights as a natural son. A natural father cannot limit these rights by agreement. While custom may permit postponing the son's interest for the adoptive father's widow's maintenance, it does not validate alienations of ancestral property to strangers or charities.
Headnote:(A) Hindu Law - Adoption - Rights of Adopted Son - Ancestral Property - An adopted son, from the moment of adoption, occupies the place of a natural son and is entitled to all rights of a natural son, including rights of survivorship and partition in ancestral property. This position arises from status and cannot be curtailed by the consent of the natural father. (Paras 15, 25)
(B) Ante-adoption Agreements - The natural father loses all power over the son from the moment of adoption. He cannot, in the capacity of a guardian, bind the son to an agreement regarding property in which the son can only have an interest after the natural father's guardianship has ceased. (Paras 25, 28)
(C) Custom and Widow's Interest - Custom sanctions arrangements, provided there is consent from the natural father, that postpone the adopted son's interest in favor of the adoptive father's widow's life interest for maintenance. However, such custom does not extend to arrangements that give property absolutely to the widow or alienate ancestral property to strangers or charities. (Paras 31, 32)
(D) Doctrine of Approbate and Reprobate - This doctrine does not apply to conditional adoptions because an adoption cannot be undone; the adopted son has no election to return to his original status, and therefore cannot be said to have elected to accept the adoption subject to conditions. (Para 30)
Facts of the case:
A Hindu testator executed a will disposing of ancestral property among a designated adopted son, his widow for life, charities, and other relatives. The natural father of the boy executed a deed of consent for the adoption, agreeing that the boy would be bound by the dispositions in the will and take only the properties designated therein. After the deaths of the testator and his widow, the relatives claimed possession of the property bequeathed to them, while the adopted son challenged the validity of the will, asserting it was not binding upon him.
Findings of Court:
The court found that while custom may validate the postponement of an adopted son's interest to secure the widow's maintenance, it does not permit the diversion of ancestral property to strangers or charities through an agreement made by the natural father.
Issues: Whether a will and a contemporaneous deed of consent executed by the natural father are binding on an adopted son, thereby limiting his rights in the ancestral property of the adoptive father.
Ratio Decidendi: The court held that an adopted son acquires the same rights as a natural son immediately upon adoption. The natural father's authority ceases at that moment and cannot be used to bind the son to conditions that infringe upon his legal status. While custom may validate the postponement of the son's interest to secure the widow's maintenance, it does not validate gifts to outsiders or charities, as such arrangements are contrary to the radical view of Hindu law.
Result: Appeal allowed and the suit dismissed.
Legal Category Hierarchy
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family law
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hindu law
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adoption
- rights of adopted son
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adoption
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hindu law
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property law
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ancestral property
- testamentary disposition
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ancestral property
Judgement
Appeal (No. 65 of 1925) from a decree of the High Court (February 8, 1924) affirming a decree of the Subordinate Judge of Mayavaram.
The suit was brought by the respondents for possession of certain immovable property with mesne profits. They claimed title under the will of a deceased Hindu, Ramakrishna Ayyar. The appellant (defendant No. 3), a minor, pleaded that the will, which devised the testators property in part to the appellant, in part to the testators widow for life, in part to charity, and in part to the respondents (relatives of the testator), was not binding upon him. The appellants natural father, before the adoption took place, had executed a deed consenting to the provisions of the will.
The Subordinate Judge held that, as the adoption subject to the agreed dispositions was beneficial to the appellant, the will was valid. That decision was affirmed by the High Court (Spencer A.C.J. and Kumaraswami Ayyar J.).
The facts and the grounds of the decision in the High Court appear from the judgment of the Judicial Committee.
1927. Feb. 7, 10. De Gruyther K.C., and Narasimham for the appellant. The appellant upon adoption became a co-sharer with the testator, and entitled to all the rights of a natural son, subject to minor exceptions which do not apply Nagindas Bhugwandas v. Bachoo Hurkissondas (( 1915) L. R. 43 I. A. 56.), Maynes HINDU LAW , para. 184. The appellants natural father was not competent to agree that the rights which under HINDU LAW the appellant would acquire by the adoption should be curtailed. There is no decision of the Privy Council determining the question, but an observation in the judgment delivered by Lord Macnaghten in Bhaiya Rabidat Singh v. Indar Kunwar (L. R. 16 I. A. 53.) supports the appellants contention. In certain cases in India ante-adoption agreements by the natural father limiting the sons rights have been held valid. In those cases, with few exceptions, the validated disposition was only in favour of the testators widow; the decisions to that effect are distinguishable, as a widow is entitled to maintenance. The reasons assigned in the decisions in India in support of such agreements by the natural father vary; it is submitted they are not satisfactory in law. The appellants contention is supported by the referring judgments in Visalakshi Ammal v. Sivaramien (( 1904) I. L. R. 27 M. 577.) and in Vyasacharya v. Venkubai (( 1912) I. L. R. 37 B. 251.), also by Balkrishna Motiram v. Uttar Narayan Dev (( 1918) I. L. R. 43 B. 542.), and by Jagannadha v. Papamma (( 1882) I. L. R. 16 M. 400.); in Maynes HINDU LAW , para. 196, no definite opinion is expressed, but in West & Buhler, 3rd ed., p. 1101, the view is that such agreements are inoperative. [In addition to the Madras and Bombay decisions referred to in the judgment reference was made to Bepin Behari Bundopadya v. Brojo Nath (( 1882) 8 Cal. L. J. 362.) ; Panchanon v. Binoy Krishna (( 1916) 27 Cal. L. J. 274.); Kalidas v. Bijoy Shankar (( 1891) I. L. R. 13 A. 391.); and Purshottam v. Rukhmabai .(( 1913) 16 Bom. L. Rep. 57.)]
Kenworthy Brown for the respondents. An agreement such as that now in question is valid if the adoption subject to its terms is for the benefit of the adopted son. There is a concurrence of judicial decisions dating from 1869 by judges familiar with HINDU LAW and customs supporting the validity of such agreements. The respondents rely more particularly upon Ravji Vinayakrav Jaggannath Shankarsett v. Lakshmibai (( 1887) I. L. R. 11 B. 381.) and the decision of the Full Bench in Visalakshi Ammal v. Sivaramien .(( 1904) I. L. R. 27 M. 577.) The referring orders relied on were merely opinions, and may have been made before the learned judges had considered the whole current of authority. One of the referring judges in the case last mentioned was a party to the Full Bench decision, and the other was a party to Ganapati Ayyan v. Savithri Ammal .(( 1891) I. L. R. 21 M. 10.) Neither Vinayak Narayan Jog v. Govindr
