Gadiraju Lakshmipathiraju, minor by father and next friend, Gadiraju Venkapathiraju vs Gadiraju Sithayya and Others

Leach, C.J.—This is an appeal from a decree of the Subordinate Judge of West Godavari dismissing a suit on a preliminary issue,. The suit

was instituted by the appellant, through his natural father, Venkapathi Raju, as his next friend. The appellant''s case was that on 4th May 1941 he

had been adopted by one Surappa Raju, who on the same day executed a deed acknowledging the adoption. Surappa Raju died the following

day. He was survived by his widow (respondent l) and by his brother (respondent 3). On 26th June 1941 the natural father of the appellant

presented the deed of adoption for registration. As the adoption created an interest in immovable property registration was necessary. The

presentation by the natural father of the deed for registration was concurred in by respondent 3, the nearest agnate of the appellant, assuming, of

course, that he had been lawfully adopted by Surappa Raju. The widow disputed the legality of the adoption and wrote a letter to the Sub-

Registrar objecting to the registration of the deed. She did not appear before the Sub-Registrar, but her letter proved to be sufficient to induce the

Sub-Registrar to refuse to register the deed. The appellant then appealed to the District Registrar, who held that the presentation of the document

was valid; but he was not satisfied on the evidence that Surappa Raju had executed the deed. On this latter ground he rejected the appeal. The

consequence was that the appellant filed the present suit under the provisions of Section 77, Registration Act. Two preliminary issues were framed,

namely, (1) whether the suit was barred by limitation, and (2) whether the document was validly presented for registration. The Subordinate Judge

decided issue 1 in favour of the appellant, and it is not disputed that he was right in so doing. He decided the second question against the appellant

and consequently dismissed the suit. Hence the appeal.

In holding that there had been no valid presentation of the document for registration the Subordinate Judge relied on the decision of this Court in

Narayana Reddi v. Audilakshmi Ammal AIR 1928 Mad. 537 and was of the opinion that the judgment of the Privy Council in Venkatappayya v.

Venkatarangarao AIR 1929 P.C. 24 in no way affected it. The Subordinate Judge did not, however, consider the judgment of the Full Bench of

this Court which decided Kamjula Subbarama Reddi and Another Vs. Mangamuri Subba Reddi and Others, where the judgments of the Judicial

Committee in Amba v. Shrinivasa Kamathi AIR 1922 P.C. 135 and Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 were discussed. In

14 M.L.W. 575 4 their Lordships held that there had not been a valid presentation for registration of a deed in favour of a minor. The presentation

was made by her father. The minor was married and on her marriage her father ceased to be her guardian. Her husband, took his place. In

Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 their Lordships had to consider the question whether a deed of adoption had been validly

presented for registration when the presentation was made by the natural father of the adopted boy. The adoptive father was dead and the natural

father was the nearest male agnate of the minor. In this case their Lordships drew a distinction between a representative within the meaning of

Section 32, Registration Act, and a guardian. They indicated that the word ""representative"" had a wider significance than the word ""guardian."" The

word ""representative"" includes a guardian, but it could include others. As the father of the minor in that case was the nearest male agnate and the

proper person to act as the natural guardian in the absence of a judicial appointment, their Lordships held that the presentation was in order. Their

Lordships also observed that by Section 41 the Registrar is made the Judge whether the person presenting the authority is entitled to present it.

For the appellant it is said that the present case falls within Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 Respondent l says that it falls

within Amba v. Shrinivasa Kamathi AIR 1922 P.C. 135. We do not agree that Amba v. Shrinivasa Kamathi AIR 1922 P.C. 135 applies here. It

would perhaps apply, if respondent 1 were to be regarded as the lawful guardian of the appellant, but this is not the case. She herself denies the

status of guardian. She says that the adoption never took place and that she is not the adoptive mother. It would be monstrous if in such

circumstances a minor who has been lawfully adopted could be defeated by his adopted mother denying, for selfish reasons, the truth of the

adoption and refusing to present the deed for registration. That their Lordships never intended in 14 M. L. W. 575 4 to go to this length is shown

by their observations in Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 In delivering the judgment of the Board, Lord Phillimore

observed:

It is said that when adoption has once taken place, the adopted child is removed wholly out of his natural family, and that his natural father has no

longer a legal relation to him. This may be taken to be the case; but what is to happen when a child of tender years, as was the case here, is

actually residing with his natural father, and has no appointed guardian. When one remembers that the definition of representative does not make it

equal to guardian, but says that it includes guardian, might it not well be said that in these circumstances and in the absence of any legally appointed

guardian, the natural father was the representative?

This Court had occasion to draw attention to the importance of this passage in the Full Bench case in Kamjula Subbarama Reddi and Another Vs.

Mangamuri Subba Reddi and Others, The Learned Counsel for respondent 1 says that in the present case the natural father of the appellant is not

his nearest agnate and this takes the case out of Kamjula Subbarama Reddi and Another Vs. Mangamuri Subba Reddi and Others, We do not

read the judgment of their Lordships in Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 as meaning that the presentation in such

circumstances must be by the nearest agnate. The presentation must be by some one closely related to the minor and one whom the Court would

appoint to be his lawful guardian, should an application be made for that purpose. There can be no doubt in this case, to use the language of their

Lordships in Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 that the natural father is the proper person to be appointed guardian and the

proper person to act as the natural guardian in the absence of any judicial appointment. Moreover, respondent 3 as the nearest male agnate was a

consenting party to the presentation by the natural father. As we have already mentioned, their Lordships pointed out that by Section 41 the

Registrar is made the Judge whether the person presenting the document is entitled to present it. The District Registrar held that the presentation

was properly made, and we consider that the case is governed by Venkatappayya v. Venkatarangarao AIR 1929 P.C. 24 which means that the

presentation by the natural father of the adoption deed for registration was in accordance with law. It follows that the decision of the Subordinate

Judge on this question must be reversed and that the case will be remanded to him to try in accordance with law the other issues raised in the case.

The appellant will have his costs and is entitled to a refund of the court-fee paid on the memorandum of appeal.