KALAPALA SRI HARI RAO MINOR Vs. KALAPALA VENKAIAH

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants. The properties which are the subject-matter of this litigation belonged to one Kotayya who died sometime in May 1910 leaving behind a widow called Venkamma. He had also executed a will on 30-4-1910 under which he conferred power on his widow to make an adoption. In exercise of this power she adopted the 1st defendant on 11-9-1943 and died on 6-11-1943. The plaintiff and defendants 2 and 4 to 9 are the nearest reversioners of Kotayya and would have been entitled to succeed to his estate but for the adoption. The plaintiff sued to recover his 1/8th share in the suit properties on the allegation that the 1st" defendant was not in fact adopted and that even if the adoption was true it was invalid as not being within the terms of the authority contained in the will. The courts below held that the adoption was true but that it was not valid because the directions in the will had not been strictly followed by the widow. It is against this decision that defendants 1 to 3 prefer this appeal.

(2.) THE will executed by Kotayya has been marked as Ex. p. 1 and paragraphs 4 and 5 therein relating to the authority to adopt conferred on the widow are as follows:

(3.) KOTAYYA had two brothers, Appayya and Ratnam. Defendants 2 and 4 to 7 are the sons of Appayya and the plaintiff and defendants 8 and 9 are the sons of Ratnam and all of them were alive at the date of the will and at the time of the death of the testator. On 11-9-1943 when the 1st defendant was adopted they were not available for adoption. The contention of the plaintiff is that the will conferred on Venkamma only a limited power of adoption and that, therefore, she had no authority to adopt any boy other than the brother's sons of Kotayya.