MACNAGHTEN, J. -
(1.) IN this case their Lordships have only to consider the meaning and effect of the will of one Kuppayyar which is found by both Courts below
to have been executed when the testator was of sound disposing mind. Mr.
Mayne, who appeared for the appellants, admitted that, if the decision of
the Court was against him on the construction of the will, success on
other points would be of no avail, The question is whether the minor
respondent Venkataramanayyar is entitled to inherit under the will
assuming that he was not validly adopted by the testator.
(2.) THE will is in the following terms: "Will left on the 26th February 1896, corresponding to 16th Masi of Manmatha year, by me Kuppayyar, son of Venkatarayar, Brahman by caste, cultivator, residing at Chinna
Dharapuram, Karur Taluk. Whereas (sic)possess the undermentioned
immoveable and moveable properties, money, outstandings and debts,
whereas I, having no issue, have been keeping Venkataramanayyar, a minor,
aged about 10, son of Venkatadasappayya of Andan Kovil, Brahman,
cultivator, who is my brother-in-law, as adopted son and protecting him
for the last three years, whereas I am now seriously ill, whereas my
mother Venkalakshmi Ammal is in her dotage, and whereas my adopted son,
the said Venkataramanayyar is a minor and consequently incapable of
managing the said properties and of protecting us, my wife Subbammal
shall, until the said minor becomes a major, administer the said
properties as guardian of the said minor, discharge the debts, maintain
the undermentioned charities which I have been conducting, bring up the
said minor, have his thread ceremony, marriage, &c., celebrated, maintain
me and my mother Venkalakshmi Ammal till our lifetime, and after our
demise have our funerals, &c., performed for us by the said minor.
Afterwards the said minor on his attaining majority shall take charge of
the said properties, debts, &c., and 'until the lifetime of the said
Subbammal he shall as per her orders look after the said properties and
discharge the debts, also maintain the undermentioned charities and after
the said Subbammal's lifetime he shall perform her funerals, &c., and
possess and enjoy with all rights the said properties, &c., from
generation to generation so long as the sun and moon last, and maintain
and conduct the said charities. Thug have I of my own accord and with my
free will and consent executed this will. (Signed) Kuppayyar."
It appears to their Lordships that the gift to the minor is not conditional on adoption. The testator no doubt refers to the minor as his
adopted son, but he explains what is meant by that expression by stating
that he had been keeping the minor "as adopted son" that is with a view
to his adoption.
(3.) THE case on which Mr. Mayne principally relied was the case of Fanindra deb Raikat v. Rajeswar Dass L.R. 12 I.A. 72 : I.L.R. 11 Calc.
463. There this Board had to construe an angikar patra which contained an allegation of the adoption of the person who claimed to inherit and then
proceeded to make a statement which might he construed either as a
disposition of property or as declaration of the consequences flowing
from adoption. Their Lordships held that the author of the angikar-patra
had no power to adopt a son who would succeed to the estate; and on the
language of the particular instrument before them they held it was not a
disposition of property, but only a statement of what would have happened
if there had been an adoption in fact and no angikar-patra had been