The legal declaration of the intentions of the testator with respect to his property, which he desires to be carried into effect after his death,

and by Section 3 of Act 10 of 1897:



Will shall include a codicil and every writing making a voluntary posthumous disposition of property.

8. The learned Judges in the Court below have held that the document in question satisfied these definitions. If the form of the document only is considered no doubt that would be so, but, having regard to the fact that it was executed by a person who was a minor and incapable of making a will, their Lordships are unable to agree with the decision. The so-called will is not a "legal declaration of the intentions of the testator," for it bad no legal effect and was not capable of disposing of any of the estates of the deceased. So far as it purported to deal with his property it was a nullity. That a document is called a will although it does not operate to any effect as such will act give it the effect of a will for any other purposes. This was so held in the cease of Jagannatha Bheema Deo v. Kunja Behari Deo A.I.R. 1922 P.C. 162 a case which was not before the learned Judges of the High Court as it was not decided till after their judgment had been pronounced.

9. It does not follow, however, as the learned Subordinate Judge held that "a person who is incapable of making a will is incapable of conferring an authority to adopt by a will though he may be capable of giving an authority to adopt to be exercised after his death." Their Lordships see no reason to doubt that a document which purported to be a will but was inoperative as such might nevertheless constitute a valid authority to adopt. Here, however, the respondents are met with a different Objection. Act No. 3 of 1877 provides, Section 40:



the donor or, after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or sub-Registrar for registration.

and Section 41 provides that an authority to adopt shall be registered in the case of the death of the donor on the registry officer being satisfied.



(a) that the authority was executed by the donor

(b) that the donor is dead, and

(c) that the person presenting the authority is, under Section 40 entitled to present the same.

10. In the present case it is not alleged that the donee, who, at the time of the registration of the document as a will was the only one who could present it for registration, either did so herself or gave authority for the registration. Act III of 1877, Part 3, Section 17, enacts that all authorities to adopt a son executed after the 1st January, 1872, shall be registered, and by Section 23, that no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. As the widow, who was the donee of the authority, failed to register it within this period of four months, the deed which was afterwards executed by her on 24th December, 1913, adopting defendant No. 1, cannot receive effect. This indeed was not contested by the respondents counsel.

11. Their Lordships will, therefore, humbly advise His Majesty that this appeal should be allowed and that the plaintiffs are entitled to a declaration, that the will dated the 1st October, 1906, alleged to have been executed by the late Mandapaka Appanna is void, and also to a declaration in terms of the 2nd, 3rd, and 4th heads of their prayer with costs of the suit both in the Courts below and before this Board.