KONDAPANENI BASAVAYYA Vs. KONDAPANENI VENKATESAM MINOR BY HIS NATURAL FATHER AND GUARDIAN KONDAPANENI BASAVAYYA

JUDGEMENT

(1.) The plaintiff who is the appellant in this appeal is the adopted son of one Kondapaneni Appayya, the adoption having been made on 17 February, 1926, by Appayya himself during his lifetime. Some four years afterwards there was a partition of the family properties between Appayya and the appellant, and from that time onwards, each of the two sharers lived separately, enjoying the share allotted to him at the division. Appayya who thus came to be in exclusive possession of his share, was entitled to dispose of it in any manner he liked, by alienation during his lifetime or by will to take effect after his death. There is reason to believe that the state of feelings between him and his adopted son was far from cordial, though this is more a matter of inference from the fact of partition and the contents of his will, than of direct proof. It may accordingly be assumed that at the time when Appayya made his will which was on 22nd September, 1936 there was no love lost between the two and that he had made up his mind that no part of his share should be allowed to devolve on the appellant. It is common ground that Appayya died in the July following.

(2.) About the genuineness of the will and his testamentary capacity at the time there is no question. The only question for consideration in this appeal is whether by the provisions made by him in his will he has succeeded in arming his widow with a power sufficiently effective to exclude the appellant from the inheritance.

(3.) The material part of the will is as follows: Now, I have got only my wife and no male or female issue. Only the adopted son is alive. About six years ago we became divided and since then we have been enjoying our respective shares separately. My wife alone is now doing service to me and attending to all my wants. Barring her, I have nobody else (to look after me). Therefore my wife, Lakshmamma, shall, after my death, take possession of all my properties in all the villages, movable and immovable, allotted to my share at the partition and enjoy their income without full rights of gift, sale, etc. She shall select a boy of her liking from among my gnatis and adopt him and that boy shall perform our obsequies, etc. (karma kanda) and the said adopted boy, from generation to generation (Putra Powtra Paramparyantham) shall enjoy only the income without rights of gift and sale. etc.