Rajgopalachari vs Venkat Chudamma and Others

Kumarayya, J.—This appeal is directed against the judgment passed, on the Original Side of the High Court dismissing the Plaintiff-Appellant''s suit. Defendant: 1 Venkatchudamme who is the Plaintiff''s paternal uncle''s wife and Defendant 2 is her adopted son.

Plaintiff''s suit was for setting aside the adoption of Defendant 2 on the ground that it is invalid and also for declaration of his own right and title to the Bungalow in Defendant 1''s possession after her death and for the recovery of rents of the downstairs portion of the same Bungalow at the rate of Rs. 50/- per month together with mesne profits during the life time of Defendant 1 under the terms of the Will executed by the husband of Defendant 1.

The facts are that one Pangal Chakrawarthi Narsimhachari, a High Court pleader, who was the real paternal uncle of the Plaintiff, passed away on 12th Bahman 1326 F (16-12-1915) leaving behind him his widow Chudamma Defendant 1, an undivided brother Raghavacharlu, the father of the Plaintiff, and his two sons and also Laxmanacharlu, an adopted son of his elder brother. He had no issue and was possessed of vast property.

Just three days before his death i.e. on 13-12- 1950, he made a will which contained several dispositions of his property in favour on his wife and others and also an authority to his wife to make ah adoption. The authority given not only specified the boy who was to be taken in adoption but also the period within which he was to be: taken. The will in clear and unambiguous terms stated that the Plaintiff shall be taken in adoption within a year from the date of testator''s death and no other boy shall be taken in adoption.

It appears the testator wished to provide for the Plaintiff, if the wife (widow) failed to take him in adoption. That is the reason why he made arrangements in para 5 of the will specifying the property which would ultimately go to him (the Plaintiff) and the extent of his right therein during the life time of the wife Chudamma. This will was actually registered at so late a date as 2-5-1913 in pursuance of a decree as there appears to have been some dispute with regard to it.

Defendant 1 failed to adopt the Plaintiff and the perked specified therefore had also expired. She, however, adopted Defendant 2 after a lapse of more than 10 years in the year 1338F corresponding to 1926; got him married to her niece and put him in possession of the property. The Plaintiff, therefore, brought his suit in the 1338 F with prayers as specified above.

Both Defendants 1 and 2 contested the suit. They however admitted the will deed and also the adoption of Defendant 2 but contended that the recitals of the will deed had not limited the authority of the widow in a manner as to take only the Plaintiff in adoption and none else, even though the Plaintiff may not be made available for adoption.

It was also averred that independent of will, the deceased had given, a day after the will deed, authority to Defendant 1 orally to take any other person in adoption if the Plaintiff could not be made available for adoption. As the obstructive attitude of the Plaintiff''s father rendered the adoption of the Plaintiff impossible it is said the widow had no other alternative than to take Defendant 2 in adoption by virtue of, the authority given to her by her husband to perpetuate his line.

It was also urged that the adoption is valid and cannot be assailed by the Plaintiff, who was not the nearest reversioner. It was further averred that para 5 of the will on which the Plaintiff''s claim is found in view of its provisions is void in law. One further plea taken on behalf of Defendant 1 was that inasmuch as the right to the Plaintiff was to accrue one year after the death of the testator, the vesting of the property could not remain in abeyance till that time and, the widow in whom the property consequently was vested as heir at law immediately after the death, of the testator cannot be divested of it.

The provisions of para 5 of the will therefore are void in law and the Plaintiff does not get any right in law thereunder. The contention of Defendant 2 in this regard is that the testator could not make such provision in his will as would defeat the rights of the adopted boy in this manner. The Defendants denied the quantum of rent and also mesne profits claimed and took up a plea of limitation as well.

On the basis of these pleadings, ten issues were framed. Parties led evidence. After due enquiry, the learned Judge came to the conclusion that the will did not confer any authority on the widow to take any boy of her choice other than the Plaintiff in adoption and that the oral authority alleged is not proved and the adoption of Defendant 2 is, therefore, invalid; but he dismissed the suit of the Plaintiff on two grounds, viz., (1) that he has no right to sue for setting aside the adoption as he is not the nearest reversioner, and (2) that para 5 of the will deed which confers, rights on the Plaintiff is void in law. The Plaintiff has therefore preferred this appeal. The Defendants too have filed their cross-appeal in relation to the decision given with regard to the invalidity of adoption.

Having regard to the facts of this case, it is clear that the fate of cross-appeal and appeal rests on the following two points:

(1) Whether Defendant s was adopted in valid exercise of the authority conferred on the widow by the deceased?

(2) If so, or, if not whether testamentary disposition envisaged by para 5 of the will is void in law?

It is a common ground that the parties belong to Dravida School of thought where a widow has no right to adopt save with the authority of her husband which may either be express or implied. Admittedly the deceased Narsimhachari had executed a will deed authorising the widow to adopt. The question is whether in exercise of the authority given thereunder Chudamma Defendant 1 could validly adopt any person other than; the Plaintiff himself.

According to the provisions of Hindu Law, the widow is bound to act according to the directions of her husband not only with regard to the way in which she could exercise the power of adoption but also as to the boy to be adopted by her. If the time limit is fixed, it is not open to her to adopt after the expiration of the said period. Similarly if the person to be adopted is specified, she is not at liberty to adopt any other boy.

The case may be different if the boy to be adopted has breathed his last and the recitals in the will contained no direction prohibiting her from adopting any other boy. But when there is clear prohibition that no other boy than the one named can be adopted, it cannot be said that the widow while adopting the other boy has validly exercised the authority given by her husband.

The material portions of the will deed run as follows and clearly show the directions given by her husband and the prohibition made by mm:

Para 4:... I have hereby given authority to my wife to take in adoption my younger brother, Rangacharyulu''s second son, Rajagopalcharylu, make him the karta of the aforesaid properties and perpetuate my lineage. On my death my wife shall take the said boy in adoption, keep the aforesaid property in her possession and herself act as the guardian. She shall without alienating the said property, utilize the income for the education, the thread marriage, marriage and other auspicious functions for the boy and for the family maintenance.... Within a year from the date of my death, the aforesaid boy shall be taken In adoption. Any other boy shall not be taken in adoption.

This is the passage in the will which confers authority on the widow to adopt the boy named by him who is no other than the Plaintiff himself. It contains prohibition in relation to adoption of any other boy. Para 5 further lays bare the clear intention of the husband. This para was evidently thought to be necessary as notwithstanding the authority given in clear terms, there was yet probability of the boy not being taken in adoption for one reason or the other.

It may be that the boy may not be made available during the period specified or even the widow may not like to take him. Though the widow cannot act beyond the directions given by her husband in exercise of the authority to adopt, yet she is not legally bound to exercise the authority at all.

The duty lies purely within her discretion; she may adopt or may not adopt. Her omission or refusal to adopt shall not be visited with any penalties, or affect her rights adversely; that is the reason why the testator had thought it necessary to make certain provisions for the boy in case his widow fails to take him in adoption.

Paragraph 5 reads as follows:

In case my wife fails to take in adoption the said Rajagopalacharyulu within the period specified above, the following properties which pertain to my ancestral acquisition & which fell to my share, namely the inam lands in the above mentioned Samasthanams, the seri land in Panirala, one half of the income got by way of rents in the downstairs portion of the bungalow in Hyderabad shall on the expiry of the period specified above belong to the said boy.

Having regard to the above para the widow in exercise of the authority to adopt could not adopt any other boy than the Plaintiff. It also Seems to be the intention of the testator that in case the widow failed to take him in adoption, the boy nevertheless would be entitled to the rents and afterwards to the property mentioned in para 5.

Obviously, the adoption of Defendant 2 by the widow after lapse of about 11 years from the date of the testator''s death, cannot be said to be quite in conformity with the express directions given by the testator or a valid exercise of the authority conferred on her.

The learned advocate on behalf of the Respondents argues that on a fair and reasonable interpretation of the will deed, it will be apparent that; the deceased wished to continue the line. It follows that the intention of the deceased was that a boy should be taken in adoption at all events. Therefore if for one reason or the other, the Plaintiff could not be made available for adoption, it was open to the widow, to adopt any other boy of her choice.

Thus in this case, her power to adopt did not cease when the Plaintiff''s adoption became impossible on account of the obstructive attitude of his father. That is the reason why she adopted another boy. As this act of hers cannot be said to be at variance with the general intention of the testator, the adoption should be deemed to be valid.

The learned advocate on behalf of the Appellant argues that according to the cardinal principle of construction, it is not open to travel beyond the express words used in the will to gather the general intention of the testator. When the words are clear and unambiguous and capable of no other interpretation, they should be deemed to convey the manifest intention of the testator.

The testator has specifically directed the widow to take only the Plaintiff in adoption and no other boy and that too within a period of one year. There cannot be any room to guess about his intention to the contrary. We feel that there is force in this argument. On consideration of all the material clauses of the will, it appears clear to our mind that the testator contemplated the adoption of only the Plaintiff and none else.

Even assuming that notwithstanding her readiness and willingness, the widow could not take the boy in adoption on account of the obstructive attitude of the father, it cannot be said that the widow, could adopt, a boy of her choice under the provisions of the will. She derives her authority only from the will and it is to be exercised in the manner prescribed therein. The widow has no inherent power to exceed the said authority. The testator has not provided for such contingency.

It is not open to the Court either to fill up this lacuna, for the Court has merely to give effect to the intention of the testator rather than try to create a new will. The very fact that the testator has specified the boy and also the period within which he should be taken in adoption the widow if at all she chose to exercise her authority could; exercise only in that manner. We agree with the learned trial Judge that the adoption of Defendant 2 cannot be justified under the directions given by the will.

(10-11) Defendant 1 has also based her right on the oral authority alleged to have been conferred on her a day after the said will. (After discussing the evidence the judgment proceeded:) Having regard to the material on record, we are not prepared to believe the story of Defendant 1. In the result we agree with the Court below that Defendant 1 could not validly take Defendant 2 in adoption in exercise of her authority given by her husband and that the oral authority alleged has if not been proved. It follows that the Defendants of appeal in relation to this fails.

Now we take up the other point which 1 of vital importance for the case of the Plaintiff in this appeal. The trial Court has observed the bequest under para 5 of the will deed is void in law as it holds in abeyance immediate vesting of the property after the death of the testator. It is argued on behalf of the Defendant that in case no adoption takes place, para 5 of the will does l make any provision for the vesting of property till the expiry of the period of one year following the death of the deceased.

It follows that there prevailed a state of in testacy under the term of the will during the (SIC) period. It is argued therefore that such bequest which is to take effect after some interval alter the death of the testator is repugnant to the principle of Hindu Law. The bequest therefore is invalid and the heirs of the testator will step in the void.

It is also urged that not only there is no provision for the vesting of the property during that one year but also under the provisions of the will, the corpus is not vested in the widow even after; the said period during her life time and this amounts to a state of intestacy atleast so far as the corpus is concerned. On this ground also it is alleged that the bequest in para 5 is invalid and the property shall vest in the widow by right of inheritance. The learned advocate cited various authorities in support of his contention which we propose to deal with later on.

The advocate on behalf of the Plaintiff on the other hand relying on the authorities reported in ''Kristoromoni Desai v. Narendra Krisha Bahadur'' 16 Cal 383 (A),''Bhupendra Krisha Ghose v. Amarendra Nath Dey AIR 1915 P.C. 101 ( V 2) (B), Lakshmana Nadar and Others Vs. R. Ramier, , Golak Behari Mondal and Others Vs. Suradhani Dassi and Others, , AIR 1947 45 (Oudh) , has argued that it is not proper to interpret para 5 of the will torn from its context i.e. independently of the other clauses of the will. It is only just that in order to ascertain the dominant intention of the testator, the document as a whole should be considered.

It is contended that on a true and reasonable construction of the document, it is impossible to hold that there was intestacy, actual or contemplated with regard to the property at any stage or that the bequest made is in any way repugnant to the Hindu Code of Law.

In our opinion there is substance in the argument of the learned advocate of the Plaintiff-Appellant. As observed in AIR 1947 45 (Oudh) '', it is the duty of the Courts to ascertain the dominant intention of the testator from the words used in the document and surrounding circumstances and give effect to it to the extent and in the form the law allows. The observations of their Lordships in ''Venkata Narsimha Appa Row v. Parthasarthy Appa Row 41 Ind App 51 (F). read as below:

The Courts are entitled to bear in mind other matters than merely the words. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use the words in a particular sense and many other things. But all this is solely an aid to arriving at a right construction of the will and the ascertainment of the meaning of the words when used by that particular testator.

In order to gather the intention of the executant the language of the entire will shall have to be considered. Further the interpretation given should be such as would give effect to all parts if possible and does not reject any of them and if there is any difficulty in giving effect to any part to the document, it can only be solved by adopting a construction which brings out reasonable and probable intention and is not in any way inconsistent with, the testator''s views, as gathered from his conduct and, disposition in his will.

The testator in this case was lawyer and at the .time of his devise he provided for various contingencies which could occur to his mind. In para 2, he specified the property which had become his widow''s stridhan with absolute powers to dispose it of by way of transfer inter vivos. In para. 3 of the will, he mentioned the property which after his death will become her own with absolute powers of disposition.

As regards the residue, he has made alternative arrangement in paras 4 and 5. This is the property which he did not intend to give to his wife as an absolute owner t but had earmarked it for the Plaintiff. Para 4 relates to the disposition in case the boy is adopted, and para 5 relates to the arrangements otherwise. In para 4, he has expressed his intention in the following manner:

On my death my wife shall take the said boy in adoption, keep the aforesaid property in her possession and herself act as the guardian. She shall without alienating the said property, utilize the income for the education, the thread-marriage, marriage and other auspicious functions for the boy and for the family maintenance. On her death, the said property ''shall pass to the said boy''.

if the said boy, should after attaining majority, be unwilling to live jointly with my wife, it is provided that ray wife should be at liberty to enjoy throughout her lifetime one half of the annual net income ''derived from the bungalow and the garden in Hyderabad'', out of the property which is directed to be retained in my wife''s possession and that my wile and adopted boy should reside in equal portions in the upstairs portion of the bungalow, that the rest of the property should ''be delivered possession of to the adopted boy and that on her death'' the entire property which 1 have arranged for the adopted son as stated m the above paragraph and which I have directed to be kept in the possession of my wile, should belong to my adopted son with powers of gilt, transfer, exchange and sale etc.

Paragraph 5 relates to the same property and reads thus:

In case my wife fails to take in adoption the said Rajagopalacharyulu within the period specified above, the following properties which pertain to my ancestral acquisition and which fell to my snare namely the inam lands in the above mentioned Samasthanams, the seri land in Panirala, one half of the income got by way of rents in the downstairs portion of the bungalow in Hyderabad, shall on the expiry of the period specified above belong to the said boy. It is provided that my wife should keep the said bungalow in her possession that she could be at liberty throughout her lifetime to reside in the entire upstairs portion and enjoy one half of the income divided by letting out the downstairs portion and also the income from the garden in Narayanguda and that on the death of my wife, the entire bungalow and garden should belong to the said Rajagopalacharyulu with powers of gift, transfer, exchange and sale''.

This clearly shows that the Plaintiff is to be the recipient of the bounty at all events. Of course some provision was made for the widow as well which will enure for her benefit till her life time. But there is no doubt that the testator has conferred an absolute interest in the property on the legatee i.e. the Plaintiff, whether he is adopted or not.

In case he is adopted, the widow shall get the aforesaid property in her possession on the death of the testator, shall act as the guardian and utilize the income for the purposes mentioned in the will for the benefit of the boy and after her death it shall pass to the said boy. If the boy after attaining majority does not wish to live jointly with the widow, an arrangement has been made for the maintenance of the widow and possession of, the property during her life time.

In case, the Plaintiff is not adopted, within the specified period, it is absolutely clear from para 5 that the entire property shall belong to the said boy but in a similar manner as is provided in para; 4 a portion of the property will still remain in her possession for her residence and maintenance for her life and to the extent mentioned for the benefit of the boy also and this too shall pass to the Plaintiff after the death of the widow with absolute rights of gift, transfer, exchange etc.

This makes it clear that it was the manifest intention of the testator that the widow shall have a limited life interest in a portion of the property including the suit property which she will take in possession on the death of the testator and which will pass to the Plaintiff with absolute powers only after her death whether the Plaintiff is adopted or not arid as regards the other property mentioned in paras 4 and 5 which is not the subject matter of the suit, of course the Plaintiff shall be at liberty after attaining majority or after the expiry of one-year, according as he is adopted or not, to get possession of the same. Thus evidently the will confers absolute estate on the Plaintiff whether he is adopted or not subject to certain conditions.

Now the points for determination are:

Whether this mode of bequest sought to be made by this will is repugnant or unknown to Hindu Law, and

Whether it can be presumed that there was a state of intestacy up to a period of one year specified for adoption following the death of the testator notwithstanding the fact that the widow was to be in possession of the property under the will as the guardian in case of adoption and as trustee otherwise for the Plaintiff.

So far as the first point is concerned, the question is whether the said bequest contravenes any rule of limitation governing the testamentary powers of a Hindu testator or the estate created is repugnant or unknown to Hindu Law. The answer to both the aspects of the question in our opinion should be in the negative. The device which gives absolute right to a legatee in existence after the death of the widow, who is given a limited interest therein cannot be said to be one in contravention of the principle of Hindu Law.

A Hindu may create a life estate or successive life estates or any other estate for a limited term provided the donee or the persons taking under it are capable of taking under a deed or will. It is also competent to a Hindu to make a grant of absolute interest defeasible on the happening of a certain subsequent event.

Evidently the testator had intended to give a limited interest during the lifetime of the widow with regard to this property which will at all events pass to the Plaintiff as absolute owner. It is also absolutely clear that so far as the suit property is concerned (i.e. the bungalow) the widow will continue to remain in possession whether adoption takes place or not and enjoy during her life time subject of course to a share in a portion of the income to the boy if he is not adopted.

Of course as regards the property other than the suit property mentioned in paras 4 and 5, it is provided that she will deliver possession on the happening of the event which is certain i.e. in case of adoption on demand on attaining majority, otherwise after the expiry of one year. The estate thus created certainly is an estate of the widow for a limited term, and it cannot be said to be repugnant to Hindu Law in view of the clear rule cited above. It is not necessary that the widow should get the same estate under the will as in case of inheritance.

It can be a more restricted or even a larger right. The device does not fail if the estate created is not in full accord with the widow''s estate but confers a more limited interest. Otherwise there is no point in making a will of the property. The learned advocate for the Plaintiff has referred us to rulings reported in 16 Cal 383 (A) AIR 1915 P.C. 101 ( V 2) (B) Lakshmana Nadar and Others Vs. R. Ramier, etc., in support of the contention that such a device as regards such property is not repugnant or unknown to Hindu Law and the devisee gets a vested interest on the death of the testator.

We agree with the learned Counsel that the bequest in favour of the Plaintiff under the will is valid bequest enforceable in law.

Now we take the second question. As observed in ''1947 Oudh 45 (AIR V 34) (E)'', there is a presumption that the testator did not intend to die intestate in whole or in part. If the scheme of the testator in the will shows the clear intention of a bequest, effect will be given to that intention even in the absence of express words.

In the said case, the Hindu testator in order to avoid disputes among his three wives A, B and C made a will under which A was to take a village S, B, another village T, for their life without any power of alienation and C was to get an amount of Rs. 250/- from B and on the death of B to get the possession of T, for her life without any power of alienation.

After the death of all the three wives, the son of the testator''s daughter D was to be the owner of all the villages and in the absence of such a son the testator''s daughter, E was to be the owner. Though the will provided that D shall inherit on the death of all the wives, there was no provision who was to have the village S in the interval if A died before the other wives. It was urged on that account that there was intestacy with regard to this village S.

But having regard to the testator''s intention as can be gathered from the document and surrounding circumstances, it was held that there was no intestacy in relation to this village. It was further held that even if it be assumed that there was intestacy whosoever steps in as heir would remain in possession of it till the death of all the widows and no longer.

In the present case, as pointed above, it is clear from the will that the Plaintiff whether adopted or not was to be the recipient of the bounty ultimately and the widow was to hold the property on his behalf, of course with certain rights of enjoyment as provided in paras 4 and 5, The context of the document and the intention of the testator as can be gathered from the scheme of the will fully justify the presumption against intestacy.

It is true that it is not open to the testator to 3 keep his estate in suspense without an owner for any length of time after his death. But the will in question does not postulate such a state of intestacy. It makes clear that the Plaintiff so far as the property is concerned shall be the owner of the property described in paras 4 and 5 whether he adopted or not and was actually given a vested interest in the said property of the testator on his, death while the widow in whom the corpus of the property vests immediately on the death of the testator is given a limited interest and the estate thus devised does not infringe the rules of limitation on the testamentary powers of a Hindu.

In Lakshmana Nadar and Others Vs. R. Ramier, '', when the testator had provided that his daughter and he heirs shall enjoy the property after the lifetime his wife, who will enjoy the said properties during her life time without any powers of alienation etc. was held notwithstanding the that the daughter was not entitled to get immediate possession of the property herself, she vested interest in the property of the testator his death, on account of the said will. It was i observed that she had the present right for future enjoyment of the property. It follows them fore that the vesting of interest in the property does necessarily depend upon the immediate actual possession and enjoyment of the property.

Thus when under the scheme of the will, the Plaintiff had eventually to get the property, we are not prepared to hold that simply because there is a period fixed for the exercise of the authority of the widow to adopt and that the Plaintiff''s rights as adopted son or otherwise, as specified in the respective paras of the will were to be regulated on the expiry of the said period, the interim period, notwithstanding the fact that the testator had earmarked the property for the Plaintiff and determined his rights, whatever his capacity may be in future, shall be regarded as a period of intestacy or a period where the vesting of the property was kept in abeyance.

The right of the Plaintiff vests in the property as soon as it is earmarked for him and whether adoption takes place or not which depends upon the subsequent event, he shall be entitled to the property. On behalf of the Defendants, in order to show that the vesting of the property could not be presumed when there is a gap of one year fixed for adoption, reliance was placed on the case reported in - ''Amulya Charan v. Kali Das'' 32 Cal 861 (G). This was the case where the validity of adoption was the main question on which depended the decision of the case. Of course, there was also a question whether the property devised under the will executed before 1-9-1870 could be vested in the trustees or not? On the strength of the authority reported in - ''Sarathchandra Banerji v. Bhupendranath Basu 25 Cal 103 (H), it was held that the executors and trustees before the Hindu Wills Act came into operation, namely, 1-9-1870 were merely managers and the property could not vest in them and so they had no estate and thus there was a state of intestacy. Of course, the question of intestacy came up for consideration in another form as well having regard to the scheme of the will itself. The intention of the testator in making a will in that case was to perpetuate his line by adoption, to consecrate deity for worship, and to make provision for his daughter''s sons. From the will it appears that trustees were put in charge of the entire property to carry out the directions of the testator as regards his debts and liabilities and to divide the income, rents and profits of the residuary estate into four equal parts; two of which were to be paid to the wife for the maintenance, education etc, of the son to be adopted after the expiry of one year, after the death of the testator; the third for the maintenance of the wife and performance of pious acts and the fourth part to be paid to his wife for the maintenance, education etc., of the three grandsons.

It was directed that the corpus of the property could be divided only after the death of the wife and the adopted son and grandson respectively have attained the age of 20 years and that to be effected by the trustees into four equal parts two of which shall be given to the adopted son for his absolute use, one to the adopted son in trust for idol, one shall be transferred to the three grandsons equally for their own use in case they arc living. Thus it may be seen that the property was to be in actual possession of the trustees with powers of management and distribution and the intention as could be gathered from the scheme of the will was that it should not vest in any person until the death of the widow and the adopted son and grandsons have attained majority.

This intention indeed is a circumstance of paramount importance. Further as no estate could legally vest before the advent of the Hindu Wills Act in trustees who were regarded as mere managers it was held under these circumstances that there was a state of intestacy as regards corpus.

The facts in the present case are distinguishable. Both paras 4 and 5 will show that the testator had under the will entrusted the property to the widow giving her a limited life interest therein and stating at the same time in the will to whom the absolute interest shall pass. Obviously there is not only immediate vesting of the property, but also that by virtue of the provisions of the will itself. So far as the suit property is concerned she was to have a limited life estate which on her death, shall pass to the Plaintiff who is not adopted.

The second ruling cited by the learned advocate is the case ''Official Assignee of Madras v. Thayarammal (AIR 1926 Mad 936 V 13) (I). The facts of this case are entirely different. In the said case, the testator bequeathed the whole of residuary estate to his grandson and. grandsons who may be born to his son K within 10 years of his death. If there are no grandsons to be born, the whole residuary estate shall be divided equally between the granddaughters after the death of his wife.

There was also a proviso that the distribution, of the residuary estate will take place alter the death of his wife, daughters-in-law and sons. A grandson was born within 10 years of the testator''s death. It was held that the bequest to the grandson not in existence at the time of the death of the testator is invalid, and the bequest to the granddaughter could not be valid u/s 117 sub- Section (9), Succession Act, as there was a grandson in existence.

Thus it was held that there was complete intestacy and hence the grandsons took the whole estate as heirs-at-law. It was further held that there was a case of interval during which the estate did not vest in any person. The facts of this case are certainly distinguishable. The question of interval does not arise in the case before us in view of the scheme of the will. When dominant intention of the testator justifies the presumption against intestacy and the immediate vesting of the property is an actuality there can be no basis for the view that there was any presumed or actual gap between the death of the testator and the vesting of the property.

It is argued that since the widow is empowered only to enjoy the income of the property and cannot deal with its corpus, the vesting of corpus shall be deemed to be kept in abeyance. We fail to understand how the property put in actual possession of the widow who is given a limited life interest therein cannot be deemed to be vested in her. It is not at all necessary for the vesting of the property that there should be full powers to deal, with it including the powers of alienation.

In Lakshmana Nadar and Others Vs. R. Ramier, , the vesting of the property in the widow was complete notwithstanding the fact that the widow had to keep the property intact for the enjoyment of the daughter. We therefore hold that the provisions of the will in relation to suit property are not void and no question of intestacy or of the bequest in para 5 being repugnant or unknown to Hindu law does arise in this case. The will being valid, issue No. 9 must be decided in favour of the Plaintiff. We decide accordingly.

As stated above, the Plaintiff sought for a declaratory relief with a right to the arrears of rent and also rent due during the life time of the widow. He has also prayed for a declaration that the adoption of Defendant 2 is invalid. The foundation for this claim is laid on the will-deed itself executed by the deceased on 13-12-1915. The question is whether on the basis of the said will, the Plaintiff has also a right to call in question the validity of adoption of Defendant 2,

What the will confers on him is only a right to the property mentioned in paras 4 and 5 subject to conditions mentioned therein. No provision gives him an express right to seek a remedy for setting aside the adoption. Of course, he being closely related to the deceased, can independent of the provisions of the will, make such a claim in relation to the property of the deceased as the next reversioner after the death of the widow or even during her own lifetime he can call in question some of her unauthorised acts including the act of adoption.

But when admittedly he was not the nearest reversioner since'' his father was alive, he could not do so as a reversioner save for some special reasons acceptable in law., But far from mentioning such circumstances, his averments in the plaint only point out that he bases his claim solely on the will deed executed by the deceased. So then the question arises whether in the circumstances of the case, the Plaintiff can seek such a relief.

Having regard to the provisions of the will, it cannot be denied that it was open to him to prove in order to establish this title to the property that the only person under the will that could be taken in adoption was the Plaintiff himself and if any other person has been nevertheless adopted, that person cannot acquire any right in the property mentioned in paras 4 and 5 and that the Plaintiff on the failure of his own adoption is entitled to the rights conferred on him under para 5 of the will.

It is only in this way and to this extent that the validity or otherwise of the adoption of Defendant 2 can be brought into question. This naturally involves a decision by the Court on the point whether the adoption of Defendant 2 is invalid. That is, the reason why two specific issues Nos. 2 and 8 have been framed in this regard by the trial Court.

Under these circumstances, it cannot be held that the Plaintiff could have sought for a declaratory relief only in the capacity of the nearest reversioner. When his right under para 5 is dependent upon the non-exercise of the authority conferred on the widow or invalid exercise thereof, it is obvious that the Plaintiff has a right to seek for a declaration of the same in order to get consequential relief. For this reason, we do not agree with the finding given by the trial judge on issue No. 5 for the Plaintiff, though not the nearest reversioner, was entitled to the relief in relation to his bequest under the will. In our opinion, the suit of the, Plaintiff ought not to have been dismissed in the manner it was done.

(26-27) Now we turn to the question of rent and mesne profits as regards which the trial Court did not give any finding. The Plaintiff''s contention is that Defendant 1 was getting Rs. 100/- per month by way of rent of the downstairs of the bungalow in which the Plaintiff is entitled to half share by virtue of the will. As she did not pay any amount up to the date of institution of the suit, the Plaintiff has claimed Rs. 7,325/- as arrears of rent due to him, for a period of 12 years and two months. He has stated that his claim for the amount has been made within three years after his attaining majority and therefore is within time.

Defendant 1 in her written statement has stated that on an average she used to get a rent of Rs. 50/- per month for the downstairs, that she had to incur an expenditure for the repairs etc., that the premises for some period, on account of plague, were without any tenants, and that besides there were many defaults on the part of tenants as well. The onus of proof with regard to the quantum of rent no doubt was on Defendant 1. (After discussing the evidence, the judgment proceeded:)

This is all the evidence on record. In view of the evidence of Defendant 1 and Rangarao, it can be safely assumed that the total rent for the downstairs was on an average Rs. 80/- though on account of plague for, some months the portions were left without any paying tenants.

Of course the total taxes used to range from Rs. 40/- to 60/- and the Defendant had expended some amount on repairs as well. Taking all this into consideration, it can be safely assumed that the net income of Rs. 60/- per month could be had from the downstairs portion of the bungalow in which the Plaintiff has a share of one-half. So then the amount which the Plaintiff can legitimately demand from Defendant 1 must be Rs. 30/- per month though Defendant 1 in her written statement has admitted only to the extent of Rs. 25/-.

Now the question is whether the demand for all these years is within time. This question is closely linked with the age of the Plaintiff. If on account of the minority, the Plaintiff could not seek legal remedy for the amounts due, certainly the claim made within 3 years after attaining his majority cannot be said to be barred by limitation. The Plaintiff, in his plaint has stated that at the time of the suit, i.e. on 3rd Ardibehist 1338F he had not; completed his 21st year.

No horoscope; however, has been filed in the; Court with regard to the age of the boy, nor has the Plaintiff''s father clearly deposed about the age with specific reference to the date of the boy''s birth. Even his sister did not depose about the same. The Plaintiff of course in his own sworn testimony has deposed that on 12th Amardad 1348F. he was 24. But Defendant 1 in her deposition states that the Plaintiff was 9 or 10 years old at the time of the will-deed and that at the time of his upanayanam, he was 19.

From the account given by this witness, it appears that the boy was born in 1316F. Some of the witnesses examined on behalf of the Defendant herself have fixed the age of the Plaintiff at a lower limit though Srinivasachari has shown him as if he was 14 years in the year 1325F., which cannot be believed. Venkatachari has stated that at the time of the upanayanam, the Plaintiff was 15 or 16 years old. This statement lends support to the story of the Plaintiff.

Having regard to the material on record, the story of the Plaintiff that at the time of the institution of the suit, he had not completed his 21st year can be accepted. In that case, his claim cannot be said to be barred by limitation. It is, therefore, obvious that the Plaintiff is entitled to Rs. 4,380/- towards the arrears of rent up to the date of suit. He is entitled at the same rate during the remaining period of the life of Defendant 1. This is our finding with regard to issue 6.

The other issue that was left undecided is issue No. 8 which is framed on the assumption that the adoption of Defendant 2 is valid. But as we have pointed out above, the adoption of Defendant 2 is unauthorised and therefore is without any legal consequence.

So then the Plaintiff is entitled to the benefit of all the provisions made for him under para 5 of the will. This is our finding with regard to issue 8.

It follows from what we have found above that the Plaintiff is entitled to a declaratory relief not only with regard to his right of enjoyment of half of the income from the downstairs of the suit bungalow during the life time of widow but also of possession of the entire (SIC) low after her death. Defendant 2 whose adoption is against the directions given by the ceased and hence invalid, cannot by virtue of his adoption stand in the way of the Plaintiff for possession of the bungalow, after the death of Defendant 1.

The fact that he was in possession of the property during the life time of the widow with her consent cannot give colour of adverse possession as against the Plaintiff who has applied for possession within 12 years from the death of the widow. The Plaintiff is, therefore, entitled to get possession with mesne profits which shall be determined in the execution proceedings and the court-fee shall be collected accordingly.

We allow this appeal for the reasons stated above, reverse the decree of the Court of first instance and pass a decree in favour of the Plaintiff-Appellant against Defendant 2 in the following terms:

(1) It is hereby declared that the adoption of Defendant 2 is void;

(2) that the Plaintiff is entitled to a sum of Rs. 4,380/- and also rent upto the date of death of Defendant 1 from the date of institution of the suit at the rate of Rs. 30/- per month. This he will get out of the assets of the deceased Defendant 1 in possession of Defendant 2;

(3) that the possession of the suit bungalow be delivered to the Plaintiff;

(4) that the Plaintiff shall get mesne profits in relation to the suit bungalow from 13-10-1950 upto this date from Defendant 2;

(5) that the mesne profits referred to above shall be determined in execution proceedings and the court-fee due shall have to be paid before the decree-holder applies for execution of his decree in respect thereof;

(6) that the Plaintiff shall be entitled to costs of both the Courts. The cross-appeal of the Respondent is dismissed. This judgment shall govern the connected appeal.