The adopted son's rights to the adoptive father's estate are determined by the timing of the disposition and the adoption, and the interpretation of the will's implication regarding the adopted son's representation of the testator and his estate.

Phillips, J.

1. In this case the appellant is the widow of one Chenchu Ranga who died in 1902, leaving a will, Ex. U. Reddi. Under this will he made certain bequests to his brothers wife and sister and left the rest of his estate to his widow with absolute rights. He also gave authority to the widow to adopt a son if she wished. It has been found by the lower Court that she exercised this power and adopted defendant on 2nd April 1911. The factum of adoption has been disputed, but, apart from oral evidence which has been believed by the lower Court, there are several documents in which the plaintiff has mentioned the fact of adoption, namely Ex. 1 to V, J, X and XVI series. Of these the only registered document is Ex. J. Ex. X and X (a) show that in 1918 a lawyers notice was issued on behalf of the plaintiff in which the adoption is referred to. D. W. 9 is the High Court vakil who issued this notice, and he asserts that the plaintiff informed him of the adoption and asked the notice to be issued. The only evidence on the plaintiffs side is. as would be expected, negative evidence, that is to say, that from 1911 to 1920 she executed a number of documents in her own name and not as the guardian of her adopted son, these documents dealing with her husbands estate. This negative evidence is quite insufficient to rebut the documentary and oral evidence on the other side which has been carefully examined in the lower Court. I therefore agree in the finding that the plaintiff did actually adopt the defendant.

2. The main question at issue is whether the defendant has by that adoption acquired a right to his adoptive fathers estate. The question of the right of the adopted son to defeat the dispositions of property made at or before the time of adoption by the father has formed the subject-matter of many reported cases to which we have been referred. In this case I think it is unnecessary to deal with those cases in detail, for in a very recent decision of the Judicial Committee which is as yet unreported, the question has been carefully considered with reference to the prior decisions. This decision of the Privy Council is in Privy Council Appeal No. 65 of 1925, on appeal from this Court whose judgment is reported in Krishnamurthi Aiyar v. Krishnamurti Aiyar A.I.R. 1925 Mad. 932. The question at issue in that case was not exactly the same as the present, but it related to the validity of the will of one Ramakrishna Iyer who executed it at the same time that he adopted a son and simultaneously the natural father of the adopted son executed a deed agreeing to the alienations made under the will. Differing from this Court the Judicial Committee held that the adoption defeated the provisions of the will. After considering the case-law both in Bombay and in Madras,. their Lordships observe that it is not possible to reconcile all the decisions and still less the reasons on which they have been based; and they proceed to examine the matter on principle in the following; words:

When a disposition is made inter vivo? by one who has full power rover property under which a portion of that property is carried away, it is clear that no rights of a son who is. subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For will speaks as at the death of the testator, and the property is carried away before the adoption takes place.

3. Applying this principle to the present case it is clear that the disposition in favour of the appellant would not be displaced by the subsequent adoption of a son, for it became vested in her at the death of the testator. The principle seems at first opposed to the large fiction of adoption whereby an adopted son, although the adoption is made after the fathers death, is deemed to stand in the place of a child actually begotten by the father: vide Tagore Case Ind. App. Supp.