Judgement

Appeal from a judgment and decree of the High Court (March 12, 1912) affirming a judgment and decree of Wallis J. (March 26, 1909).

By a will made in 1889 V. Venkatarama Pillai (hereinafter called the testator) referred to his intention to adopt Venkatakrishna Pillai, and, in the event of his death before the said adoption was completed, authorized his widow Subbammal to complete the adoption, and further provided that if the son to be adopted should die during his widows lifetime she might take in adoption one of the sons of the testators daughter Rajammal. At the time this will was made the testator was the sole surviving coparcener of the property to which it related, but upon the adoption taking place he ceased to be so.

17 Law. Rep. 43 Ind. App. 20 ( 1915- 1916)

V. Venkatanarayana Pillai V. V. Subbammal 118

In February, 1890, the testator duly completed the adoption of Venkatakrishna Pillai, and in March, 1890, he executed a second will. By that will he disposed of his property in favour of his said adopted son, and provided (by clause 5) that in the event of the death of the adopted son the property should be enjoyed by his issue, with further dispositions in the event of the adopted son dying without issue. The will contained no clause revoking the previous will or the authority to adopt.

The testator died in April, 1890, leaving him surviving his widow Subbammal, his daughter Rajammal, and his said adopted son. The will of 1890 was admitted to probate. In 1891 the adopted son died without issue. In 1894 the testators brother (the original appellant) obtained a decree setting aside the will of 1890 on the ground that it dealt wholly with ancestral property over which he had no power of disposal. In 1906 Subbammal, acting under the authority contained in the will of 1889, adopted the second respondent, a son of Rajammal.

The original appellant thereupon instituted the present suit to set aside that adoption on the ground that the widow had no subsisting authority to adopt.

Wallis J. dismissed the suit, being of opinion that the invalid will of 1890 did not revoke the authority to adopt contained in the will of 1889. This decision was affirmed on appeal to the appellate jurisdiction (Sir Charles Arnold White C.J. and Sankaran Nair J.). The learned judges were of opinion, agreeing with Wallis J., that the second will was inconsistent with the first, and that if it had been operative there would have been a clear revocation of the earlier will. After considering the authorities with regard to the doctrine of dependent relative revocation referred to in Jarman on Wills, 6th ed., pp. 148, 169, and 170, they agreed with the view of Wallis J. that the principles laid down in Alexander v. Kirkpatrick (L. R. 2 H. L. Sc. 397.) applied, and that, since the intention to revoke could only be found in the later invalid disposition, the original authority remained effective. The appeal was accordingly dismissed.

The original appellant appealed to the Privy Council and died pending the hearing. By an order made on March 23, 1915, the appeal was revived and V. Kuppusami Pillai, the next reversioner, was substituted in place of the original appellant. The proceedings upon the petition for that order and their Lordships judgment thereon are reported at L. R. 42 Ind. Ap. 125.

1915. Nov. 3. Sir R. Finlay, K.C., and Dube, for the appellant. Clause 5 of the will of 1890 is wholly inconsistent with the authority to adopt contained in the will of 1889, and shows, as both Courts in India held, an intention to revoke that authority. Though the will of 1890 was invalid as a testamentary disposition, it operated as a revocation of the previous authority to adopt. The failure of a second will owing to the incapacity of the devisee, or other extrinsic circumstance, does not prevent it from being an effectual revocation of an earlier will Tupper v. Tupper (( 1855) 1 K. & J. 665.) ; Baker v. Story (( 1875) 31 L. T. (N.S.) 631.); Quinn v. Butle