Judgement

Appeal (No. 62 of 1923) from a decree of the High Court (April 16, 1920) affirming a decree of the District Judge of Ganjam.

The suit was instituted by the appellants, who prayed by their plaint (1.) for a declaration that the will of Mandapaka Appanna was void, (2.) that the adoption of the first defendant was illegal and invalid, and for other relief.

The question arising upon the present appeal was whether an authority to adopt conferred by a will, which was invalid but was registered as a will, was ineffectual for want of due registration as an authority to adopt.

2 Law. Rep. 52 Ind. App. 305 ( 1924- 1925) Kondapalli Vijayaratnam V. Mandapaka Sudarsana Rao

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The facts appear from the judgment of the Judicial Committee.

The District Judge dismissed the suit; upon the question raised in the present appeal he said "Where a document is honestly believed by all parties concerned to be a will and is registered as such, I am inclined to think that the registration should be considered sufficient for the authority to adopt contained in the document."

Upon appeal to the High Court the decision was affirmed. The learned judges (Wallis C.J. and Moore J.) were of opinion that the document, even if invalid as a will on account of the minority of the executant, satisfied the definition of a "will" in the General Clauses Act, 1897, s. 3, sub-s. 57, and was therefore a " will" for the purposes of the Indian Registration Act, and that accordingly the authority to adopt was one " conferred by a will" within s. 17 of that Act, and so was not one to which ss. 40 and 41 applied.

1925. Hyam and B. N. Srivastava for the appellants. ^The document being invalid as a will, the authority to adopt was not one "conferred by a will" within s. 17 of the Indian Registration Act; the Act did not say, as it might have done, "a document purporting to be a will." The strictness with which the requirements of the Act should be enforced and the limited operation of s. 87 appear from Mujibunnissa v. Abdul Rahim (( 1900) L. R. 281. A. 15.) ; Jambu Parshad v. Muhammad Aftab Ali Khan (( 1914) L. R. 421. A. 22.) ; and Jagannatha Bheema Deo v. Kunja Behari Deo. (( 1921) L. R. 48 I. A. 482.) If the authority to adopt is effective it might be exercised in a manner conflicting with the intention appearing by the inoperative will.

W. Ingram for the first and third respondents relied upon the view of the High Court and upon s. 87 of the Act.

June 11. The judgment of their Lordships was delivered by

LORD SALVESEN. The circumstances out of which this suit has arisen, so far as they are material to the judgment, may be very shortly stated.

One Mandapaka Appanna, a Sudra in the Ganjam district, who was possessed of a considerable amount of property, died in 1906, leaving a widow and two daughters, the latter being the plaintiffs in the action. When on his deathbed and within an hour or two of his actual death he executed a document, which purported to be a disposition of his pro perty, and at the same time conferred a power of adoption on his widow. This document was registered as a will at the instance of a legatee. It was challenged by the plaintiffs (who are still in minority) on the ground among others (1.) that it was not genuine and (2.) assuming that the signature which it bore to be that of the deceased, that he was incapable at the time of understanding its contents owing to the illness from which he shortly afterwards died.

Both Courts have decided, although with much hesitation, that the will was genuine, and on the question whether the deceased was in a fit condition to dispose of his property, the Subordinate Judge held that he was, and the High Court of Judicature at Madras may be presumed to have indorsed his judgment, although they have not expressly dealt with this matter in their reasons. Whether it is competent in these circumstances for their Lordships Board to entertain an appeal from what may be represented as concurrent judgments on question