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1856.

MEE UMMAL

v. GoPOO NADARAJA CHETTY.

actually executed, they are void at law, a Will or NAGALUTCH- testamentary power being wholly foreign and re

pugnant to the Hindoo law prevailing in Madras, 1 Strange's “Hindu Law," p. 254, Mad. Reg. V. of 1829. The Sudder Courts in Madras have decided that such an instrument is

instrument is illegal and void (a). There is, besides, another fatal objection, which is, that Appacooty Jyen had no power to alienate the ancestral property; without the consent of his heirs he could not do so by deed, much less so could he by Will, which is not known to the Hindoo law. By the Hindoo law, ancestral property of an undivided family belongs to the family in common, and not to the head of it alone, 1 Strange's “Hindu Law,” pp. 2, 17, 19, 199, 349; The Mitacshara, ch. i., s. 1, Daya-Crama-Sangraha, fo. 94. The distinction as between ancestral and self-acquired property, as affected by Wills, is fully recognised by the Courts in Madras (6). In the event of the Respondents defeating her right to adopt, the Appellant, as widow of the deceased without male issue, is sole heir to his movable and immovable property, as she takes before the daughters, 1 Strange's “Hindu

“ Law,” p. 133, Keerut Sing v. Koolahul Sing (C), Cossinauth Bysack v. IIurrosoondery Dossee (d).

Mr. Wigram, Q.C., and Mr. Forsyth, for the

Respondents. First. The title of the Appellant to maintain this suit is founded upon the alleged adoption. Now, there is no evidence, or even an allegation in the

(a) Decisions Sudr. Udalut, Mad., vol. i. pp. 27. 111.
(6) Decisions Sudr. Udalut, Mad., vol. ii. pp. 61. 193. 271.
(c) 2 Moore's Ind. Apr. Cases, 331. ( Morton's Dec. 85.

1836,

MEE UMMAL

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pleadings, that she has adopted a son for her deceased husband. If she had adopted a son, she has no title, NAGALUTCILas widow, to institute this suit, as, by the Hindoo law, the act of adoption divests the property from the widow

NADARAJA and vests it in the adopted son, Dhurm Das Panıley CHETTY. v. Mussumat Shuma Soondri Dibiah (a), Rungama v. Atchama (6); her title to sue could only have been in the character of guardian of the son. In any view she cannot succeed in this suit, as it is not shown that she is her deceased husband's heir. We admit

. that a widow may, in some circumstances, succeed to her deceased husband's property, 1 Strange's “ IIindu Law,” p. 121, but the case of Keerut Sing v. Koolahul Sing (c), cuts it down to a life estate ; but here the husband, by the exercise of a testamentary power, has defeated her title altogether.—[Sir William Maule : The Appellant does not treat the case as one of adoption, but as having the power to adopt.]

- The question of the Appellant having adopted a son is only raised here upon the petition of appeal.—[Mr. Pemberton Leigh : It is not pleaded that she exercised such a power, supposing she had the authority of her husband to adopt. Upon a record so framed we cannot, upon appeal, determine the question of adoption, even if such a power had been given.]

Second. Then the sole question remaining is the validity of the Will and Codicil. The evidence establishes the due execution of these instruments. The position and character of the Respondents, who are mere trustees, and have no interest under the Will, but to carry into effect the charitable intentions of the Testator, their readiness to sanction an adoption, (a) 3 Moore's Ind. App. Cases, 229.(6) 4 Moore's Ind. App. Cases, 1, (c) 2 Moore's Ind. App. Cases, 331.

1856.

LAL

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if power to adopt could be shown to have been NAGALUTCH. given, at once proves their disinterestedness and MEE L'umal their conviction of the genuineness of these instru

Goroo ments. The charge of forgery as against them, or NADARAJA CHETTY. undue influence in obtaining the execution of

the Will and Codicil, is not entitled to any credit, being contrary to probability as well as fact. It is perfectly competent, by the Hindoo law, as at present prevailing, for a IIindoo to make a Will. Mulraz Lachmia v. Chilekany Vencata Rama Jagganulha Row (~) Maulrauze Vencata Vurdiah v. Maulrauze Lutchmia (6), are express authorities upon that point, and relate to the Presidency of Madras. It is also recognised by Mad. Reg. XXV. of 1802. A distinction is attempted to be made by the Appellant between acquired and ancestral property, and it is argued that the Testator could not by Will alienate ancestral property. No such distinction, however, exists. The foundation of the testamentary restriction rests upon the Uindoo law of an undivided family; kinsmen and coparceners having a righề which

a cannot be divested without their consent. The Mitacshura, ch. i., sec. 1, pl. 30. But here the Testator was without kinsman or coparcener, and, in the absence of male descendants, he provides for the maintenance of his wife and daughter, and some female relations. In such circumstances it was competent for him to make a Will, devising ancestral property. The Pundits who have been consulted, and the Courts in India, have held upon their exposition of the law, that he had such a power, and this Court will not willingly reverse such decisions, operating as it does so beneficially by recognising the power of a IIindoo disposing of pro

(a) 2 Moore's Iud. App. Cases, 51. (8) 1 Mal. Decisions, 138.

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1836.

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perty by Will in Melras. We concede that where the Mitacshara governs, a father cannot by Will exclude his NAGALUTCH

In considering the validity of a Will, it is neces- wie UMMAT, sary to look to the disposing power a Ilindoo has over

NADARASA his property, whether ancestral or otherwise. In Bengal, a Hindoo may leave by Will, or bestow by deed of gift, his possessions, whether inherited or acquired. 2 Strange's Hindoo Law," p. 438, Mullick v. Mullick (a). 1 Morley's Dig., tit. “Will,” pp. 612, 616. The only restriction, according to Colebrooke, a great authority, 2 Strange's "Hindoo Law,” p. 435-6, is, if the Testator

So in Madras he can dispose by act, inter vivos. Rungama v. Atchama (5). There is no reason why the Will of a Hindoo devising ancestral estate should not be treated as a conveyance. It is of little importance by what name the instrument or declaration by which a Hindoo governs the disposition of his property after his death is, whether it is called a Will or a deed. In Scotland (c) heritable property cannot be devised by Will, it must be by a trust disposition; which is, in fact, a conveyance. In the like manner it is competent to a Hindoo to make a gift of his property by deed, inter vivos, which is in the nature of a Will. 1 Strange's “Hindu Law,” pp. 17, 18, 258. Eshanchund Rai v. Eshorcund Rui (1), Sreenarani Rai v.

d Bhya Sha (e). It would not perhaps be good if given to one son to the exclusion of the other sons. Sham Singh v. Mussumat Muraster (f). Now if a Hindoo can give, sell, or run in debt, so as to affect his ancestral property and render it liable to an execution, he surely must have a power of disposing of (a) i Knapp's P. C. Cases, 245. (6) 4 Moore's Ind. App.Cases, 1.

1 , (c) See Bell's Dict. of Law of Scotland, tit. “ Will.” (d) 1 Ben. Sud. Dew. Rep. 2. (C) 2 Ben. Sud. Dew. Rep. 29. (1) 3 Moore's Ind. App. Cases, 191,

1856.

. GUPOO NADARAJA CHETTY.

it by Will. Such power was recognised here in Baboo NAGALUTCHI- Junokey Doss v. Binılabun Doss (a). The Mitacshara, MEE LUMAT ch. i. sec. 1, pl. 27. If the decision of the Court

below be reversed, it will go to the extent of holding that in no circumstances in Madrus can a Will by a IIindoo devising ancestral estate be valid.

Mr. E. J. Lloyd, in reply. It is inconsistent with, and repugnant to, the spirit of the Hindoo law which is in force at Madras, to allow such a testamentary disposition as this. The Hindoo law, in fact, knows no such instrument as a Will.

1 Strange's "Hindu Law," p. 251. Mad. Reg. V. of 1829 expressly prohibits the exercise of such a power. The cases referred to by the Respondents relating to Wills do not apply, as they are either founded upon the authorities prevailing in Bengal, which are not received as law in Southern India, or, as in the case of Mulraz Lachmia v. Chalekany Vencata Rama Jagganadha Row (1), relate to self-acquired property, 1 Strange's Hindu Law, p. 268, which point is not now in contention. The objection here is confined to the validity of a Will devising ancestral estate. It has been recently held in Madras that such a Will is a nullity and of no force (c). Such a restriction is not peculiar to Southern India ; an instrument devising real estate would be void by the law of Scotland. And so it would be by the English law, as in this case there is a devise of real estate to charitable purposes, which would be void by the Statute of Mortmain. The judgment of the Court below is founded upon the opinions of the

(a) 3 Moore's Ind. Arp. Cases, 745.
(6) 2 Moore's Ind. App. Cases, 54.
(*) Decisions Sudr. l'dalut, Mad., vol. i. p. 27,

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