THOTAPALLY SARVABHOTLA VENKATA CHANDIKAMBA, LATELY A MINOR BY NEXT FRIEND AND FATHER DEVULAPALLY SURYANARAYANIAH, DECLARED A MAJOR Vs. SHROFF VENKATA RAO

JUDGEMENT

(1.) This is now in effect a suit for possession by the plaintiff and the contest lay between the widow of Thotapally Sarvabhotla Krishniah(junior), the adopted son of Thotapally Sarvabhotla Krishniah (senior) and the widow of the latter who adopted plaintiff's husband Krishnayya on 21 May, 1908, in pursuance of a power given to her by her husband in his will Ex. VIII. The widow of Thotapally Sarvabhotla Krishniah (senior) is now represented by her nephew. The adopted son Thotapally Sarvabhotla Krishnayya (junior) died and the plaintiff is his heir. The learned vakil for the appellant mentioned but abandoned argument based on a verbal agreement prior to the adoption and prior to Ex. I. So the only question for us is the proper construction to be placed on Ex. I which is an agreement dated 21 May, 1908, the date of Thotapally Sarvabhotla Krishniah's (junior s) adoption entered into by the 1 defendant (the adoptive mother) and the natural mother and brother of the adopted boy. The contested passage is contained in the following extract from the agreement entered into on adoption: Thereupon it having been arranged between us that out of the property in my possession and belonging to my husband, the said Krishnayya shall be entitled to enjoy only the property noted in the schedule below with all the rights, that the remaining property, moveable and immoveable, belonging to my husband and which is in my possession, shall be enjoyed independently by myself alone, and that the property which remains after being utilised by me during my life-time shall be enjoyed after my death by the said Krishnayya, you have agreed to give the said boy Krishnayya in adoption to me on that condition, and having given the boy to me duly in adoption by means of the Datta Homa (the sacrifice performed at the time of the adoption), etc.. you put him In my possession. I have, therefore, henceforward given all the property belonging to my husband, as per the schedule below, to my adopted son S. Krishnayya. The said Krishnayya shall therefore enjoy the said property with all the rights.

(2.) There is no question as to the scheduled property; the contest is only as to the meaning of the clause dealing with "the remaining property" which it is said shall be enjoyed independently by myself alone and that the property which remains after being utilised by me during my life-time shall be enjoyed after my death by the said Krishnayya.

(3.) On this the Subordinate Judge found that Subbamma had right to alienate the corpus inter vivos or by will and that Krishnayya had a mere contingency creating no vested interest (para. 17 of the judgment). The contention of the appellant before us is that the adoptive mother reserved to herself by this settlement--for that is its effect--a life-estate with full powers of disposition inter vivos with remainder to the adopted son as to the properties if any over which she had not exercised her powers of disposition. The respondents, on the other hand, contended that the adoptive mother reserved to herself an absolute estate and Krishnayya took a mere spes of inheriting anything after her death--or that the absolute estate once given cannot be cut down by a repugnant clause which proceeds to annex another estate to it. That the adoptive mother (Subbanima) intended to benefit Krishnayya by this clause there can, I think, be no doubt. If she intended merely an absolute estate for herself there was no need to insert the clause at all--she had on this assumption already settled all she intended to settle by the gift of the scheduled properties. It seems also improbable that she intended an absolute estate for herself. Otherwise the words "after being utilised by me during my life- time" would have no meaning, as she would, of course, be entitled to deal with property absolutely hers in any way she pleased after her death. The last sentence in Ex. I is relied on by the respondents; that only shows a gift in praesenti to Krishnayya. The scheduled properties passed at once, but the remaining properties did not, being retained by Subbamma herself for her life. There is no question that Subbamma was not entitled to dispose of the properties dealt with by Ex. I as she had succeeded to the properties of her husband under his will Ex. VIII. It was attempted to import the term of Ex. VIII into a discussion of the meaning of Ex. I but in my opinion this document cannot be looked at for the purpose of settling the question of the disputed clause in Ex. I.