KAVULURU ALIAS PEMMARAJU VISWANATHAM Vs. KUNTAMUKKALA PURUSHOTHAMMA

JUDGEMENT

(1.) These appeals arise out of the same suit O.S.No. 40 of 1964 on the file of the Subordinate Judge's Court, Vijayawada. Defendants 1 and 3 filed Appeal No. 100 of 1967 while the plaintiff filed A.S. No. 230 of 1967, in so far as they were aggrieved by the Judgment of the lower Court.

(2.) The facts out of which the suit and the above appeals arise are as follows : One Kavuluri Lakshminarayana died on 5th September, 1947, leaving behind him the plaintiff, the daughter of his first wife who died in 1920, and the third defendant who was adopted by his second wife Seshamma who also died in 1963. Lakshminarayana left a registered will Exhibit B-2 dated 3rd September, 1947, making certain provisions regarding his property after his death conferring inter alia the power of adoption on his widow Seshamma. Seshamma, the second wife of Lakshminarayana, adopted the third defendant in 1961, that is after the coming into force of the Hindu Adoptions and Maintenance Act and not in accordance with the directions given in the will of her husband. The case of the plaintiff is that the adoption of the third defendant which was not in compliance with the directions given by the testator was invalid and that the plaintiff' became entitled to the property as per the terms of the will. Accordingly she filed the suit for recovery of possession of the property from the third defendant impleading the first defendant who was continuing in possession as a lessee of Seshamma. The suit is mainly contested by the third defendant on the ground that as the adoption was made after the act, it was no longer obligatory on the part of Seshamma to comply with the directions in the will, that the adoption is valid under the provisions of the Act, that after the coming into force of the Hindu Succession Act, 1956, Seshamma who was in possession of the property as a limited owner acquired absolute rights under the provisions of section 14 of the Hindu Succession Act, that after her death in 1963, the property devolved on the third defendant as the sole heir and that the plaintiff has no right to maintain the suit. The second defendant is an alienee of item 5 of plaint schedule from Seshamma. He contended that the alienation is valid, that it was effected in pursuance of the power given by Lakshminarayana to his wife Seshamma under the will. The Court below upheld the case of the plaintiff and decreed the suit, except as regards item 5 of the schedule property.

(3.) A.S.No. 100 of 1967.-The main point for consideration in this appeal are whe ther the adoption of the third defendant was valid and whether the plaintiff acquired title to the property as per the terms of the will. In order to appreciate this contention, it is necessary to refer to the relevant portions of the will Exhibit A-1, which are as follows :- "........(4) That my second wife Seshamma shall enjoy the income from all the lands, wet and dry belonging to me and situate in Kavuluru during her lifetime. In respect of the tiled house and vacant site at Kavuluru that fell to my share she is entitled to sell the same if any necessity arises. (5) During the lifetime of my wife Seshamma, she may adopt a son, if she so desires, to perpetuate my lineage and for offering oblations to me. I hereby give her power to adopt a boy from among the male children of my daughter Punishothamma. On such adoption, the adopted boy shall be entitled to and enjoy the entire property belonging to me in Kavuluru village with absolute rights of gift, sale, etc. In case my wife docs not make any adoption, the property in Kavuluru village remaining on the death of my wife shall be enjoyed by my daughter Purushothamma with absolute rights.........". The points involved in this appeal mainly depend upon the proper interpretation of the above terms of the will and upon the effect of the provisions in the Hindu Adoptions and Maintenance Act, 1956. The plaintiff's contention is that the adoption having taken place contrary to the directions of the testator it is invalid, in other words, it was a case of there being no adoption by Seshamma as contemplated in the will in which event, the property became vested in the plaintiff on the death of the widow on the footing that there was no adoption. In the alternative, it is contended that the property vested in the plaintiff immediately after the death of the testator under the will. Hence in either event, the plaintiff claims the property as having vested in her. On the other hand, the contention on the part of the third defendant is that the adoption is valid, that there was no vesting of any property in the plaintiff, that after the Hindu Succession Act, the widow became the absolute owner of the property and that after her death, it devolved on the third defendant as the sole heir. It is therefore, necessary to consider the relative merits of these contentions.