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