VANKA LAKSHMINARAYANA SASTRI Vs. MANGALAPPALLI SUNDARAMAYYA

JUDGEMENT

(1.) The plaintiff is the appellant. He filed a suit in the Court of the Subordinate Judge of Amalapuram for a declaration that he was the adopted son of one Dattatrayalu and for possession of the properties set out in schedules B and C to the plaint from the several defendants who were in possession of portions of them. Defendant 1 who died pending the suit was the widow of Dattatrayalu. Dattatrayalu left behind him his last will and testament dated 27th November 1896. In and by this will he gave his widow authority to make an adoption to him, but he indicated that she should adopt one Durgayya son of Venkatanarasayya, his nearest gnati and only in case the natural father of the said boy was unwilling to give him in adoption, she was given authority to take in adoption any boy of her choice. He owned an extant of 11 acres 75 cents in Indupalli and he disposed of these properties as follows: He gave absolutely 2 acres to his elder brother Subbayya Sastrulu, l acre 50 cents to his elder sister Ramappa and one acre to his younger sister Mahalakshmi. Out of the remaining extent of 7 acres 25 cents he gave to his mother Seshamma 2 acres 25 cents to be enjoyed by her for her lifetime. He bequeathed the remaining 5 acres and the remainder after the life estate of Seshamma in 2 acres 25 cents to his adopted son. He gave his wife a right to reside in a portion of the family house and to enjoy during her lifetime 2 acres of land out of the lands bequeathed to the adopted boy in case she and the adopted boy did not agree to reside together. After her death, these 2 acres were to devolve on the adopted boy. Clause 7 of the will is as follows:

(2.) It was in 1937, nearly 40 years after the date of the settlement, that defendant l, the widow purported to adopt the plaintiff on 2nd May 1937. Now the alleged adopted son seeks to set aside the alienations made by the widow and by Subbayya Sastrulu."

(3.) Both the factum and the validity of the plaintiff's adoption were questioned by the defendants. The learned Subordinate Judge found that the adoption of the plaintiff was true but it was not valid, because it was not in due exercise of the authority conferred on the widow by the terms of the will. He found that the authority was not strictly acted upon, because the boy Dargayya was available for adoption but was not taken in adoption. He also held that the alienations sought to be attacked by the plaintiff were valid and binding on him.