(PUNUMATSA) VENKATAPATHI RAJU Vs. (MATINA) SURYANARAYANA

JUDGEMENT

(1.) The plaintiff claimed and obtained a decree for the recovery of half of the property which belonged to the late last maleholder Subba Rao, he and the first defendant being reversioners of equal degree. Subba Rao was adopted by the widow of Pedda Ramamurti under authority from her husband. Pedda Ramamurthi had one brother Chinna Ramamurthi who died issueless, a sister Pullamma who is the 5 defendant, and a third brother. Jagannathan who survived him and left a Will in favour of the son to be adopted by his brother's widow. In this Will, he provided that, if there should be disagreement between the boy to be adopted and his adoptive mother Ramamma or the testator's sister Pullamma, the women should have the usufruct of the lands in Mogdilin village for their lifetime and after their death that property should go to the adopted boy.

(2.) Several complicated questions of law have arisen out of these facts which are unnecessary to be set out for the purposes of this second appeal. But as two main arguments have been addressed to me on behalf of the appellants, I think it sufficient to dispose of those arguments only and not to take up the discussion of intricate points of law which are not necessary for deciding the second appeal. The appellants claim title to the Mogdilin lands by virtue of sale-deeds executed in their favour by the 5 defendant Pullamma and the first defendant who, as I have stated, is another reversioner of equal degree with plaintiff. The plaintiff has been given a decree for a moiety of last male owner's estate. Pullamma alienated her life-interest in the Mogdilin lands and the first defendant alienated his reversionary interest in them. There remained the interest of Ramanna who died before these sale-deeds were executed, and the Subordinate Judge has rightly held that her life-interest did not survive to Pullamma. On her life-interest falling in, the whole interest in her moiety became vested in the reversioners and the first defendant is entitled to a moiety of it.

(3.) It is, therefore, argued that the plaintiff cannot be given a decree for the whole moiety of this item as half of Ramanna's share must go to the first defendant. The sale-deeds have not been printed. I am unable to know exactly what was conveyed by the 8 defendant and the first defendant. But apart from this difficulty, the first defendant has not appealed and the Dissrict Judge has found that the depositions in favour of the two widows were not valid as against the rights of the adopted son. In my opinion, the testator could not provide for a contingency that might occur at any uncertain moment after his death leaving the property not vested in anyone in the meantime. In Bhyri Appamma V/s. Bhyri Chinnammi [1920] 12 L. W. 17 we observed: A Hindu has no such power of alienation over ancestral properties as would affect the rights of his adopted son unless the alienation was made for necessity, even if the alienation was made during tha lifetime of the father. An attempted alienation by Will, to take effect on a certain contingency expected to occur after an adopted son comes into existence subsequent to the death of the testator, stands of course on a much weaker basis.