Chandra Reddy, J.
(1) This appeal is filed by defendants 1 to 3, against the decrees and Judgment of the Subordinate Judge of Amalpuram. The suiut, which has given rise to this appeal, was instiuted by one Rajeswari for recovering possession of the plaint 'A' schedule lands and a house site, and for directing the defendants to render an account of the profits for the years 1942 to 1949.
The plaintiff is one of the three daughters of one Akella Subrahmanyam, the other two daughters being Vyaghreswari and Sugunavati. This Subrahmanvam executed a will on 15-9-1938, bequeathing 10 acres and 78 cents of his land to his wife Subbamma with absolute rights, and also conferring a power upon the latter to take one of his maternal grandsons in adoption. The testator died three months later.
On 6-3-1942, Subbamma executed a Will in respect of theproperties she got from the will of her husband and also what she acquired with the income from the properties given to her by the husband. Under this document,. she gave a life estate to the plaintiff of 5 acres and 20 cents of land and a house site with a vested remainder to her male issue. We are not concerned with other dispositions in the will.
Under the terms of this Will, the 1st defendant, the husband of the ledest daughter Vyaghreswari was to be in possession of this property disposed of under the will for a period of two years after the lifetime of the testatrix, manage them to the benefit of the legatees, arrange for the marriage of the last daughter Suganavati, who at the time of the will unmarried, and to do such other things as were directed by the testatrix, under the will. Subbamma died on 11-3-1942.
(2) It is alleged in the plaint that Subsequent to the death of Subbamma, the 1st defendant continued to manage the properties by mutual understanding. Later on, when requested by the plaintiff to put her in posession of the properties bequeathed to her under the will of her mother, the 1st defendant refused to do so, and thus collected plaintiff to seek the reliefs mentioned above in the suit. The 2nd defendant is the son of Vyaghreswari who is married to the 1st defendant, the 3rd defendant being his step-brother.
In the plaint, it was recited that none of the material grandsons of Subramaniyam was adopted by the latter's widow i.e., the plaintiff's mother.
(3) The suit was resisted by the defendants on various grounds, that the 2nd defendant was adopted by Subbamma in accordance with the wishes of Subrahmanyam, that the will of Subbamma was inoperative for the reason that the adoption of the 2nd defendant by Subbamma had operated to divest her of all the properties which she got by way of bequest from her husband under the will, and that in any evnet, the defendants are not liable to account for the profits, as under the terms of thewill of Subbamma, the 1st defendant could nt be made liable for the income from these properties, and that lastly, the suit was barred by limitation so far as the accounting is concerned.
(4) The Subordinate Judge found on the factum of adoptioin in favour of the defendants. However, in his opinion, the adoption of the 2nd defendant did not have the result contended for by the defendants, and that the 1st defendant was liable to render an account of the profits from 1944 till the date of delivery of possession, and that the respect was within time.
He also held that the 2nds defendant was not liable to account as the 1st defendant had admitted that it was he that was in management of the properties subsequent to the death of Subbamma.
(5) In this appeal filed by the aggrieved defendants against the decision of the Subordinate Judge, the main point debated relates to the effect of the adoption of the 2nd defendant on the bequest in favour of subamma under the last will and testament of Subramanyam, It is urged by Mr Sarma on the theoryof relation back that the moment the adoption took place, the widow was divested of all her estate.
According to him, since the will of Subrahmanyam could could take effect only after the death of the last male-holder, and the aodptioin relates back to the death of the adoptive father, the adoptive father must be deemed to have had no testamentary capacity.
(6) We do not think that we can give effect to this contention. It is true that in certain cases, adoption has the effect of divestiment, but the theory of relation back is not an absolute one applying in all respects. We do not think that it can be extended to a case where a man empowers his wife to make an adotpion, and under the same 'effect' makes certain dispositions.
In such a case, the adotpion cannot affect the properties demised under the will of the last male-holder as they are already carried away. The right of the adoption son springs only in such an eventuality only from the moment of his adoption. The situation is different, if the adoption had preceded the will taking effect that is, if the adotpion was made by the last male-holder himself.
But in a case where under the same instrument the testator confers upon his widow the power to adopt and at the same time makes certain dispositions, the adoption cannot operate to validate the bequest made under the will.
(7) The position in this respect is summed up by their Lordships of the Privy Council in -- 'Krishnamurthy v. Krishnamurti', AIr 1927 PC 139 (A). After noticing the divergence of the judicial opinion in regard to the power of natural father to enter into ante-adoption agreements, and after examining the question on first pricniples, their Lordships summed up the position thus:
'When a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and adoption is subsequently made by a widow who has been given power go adopt.
For the will speaks as at the death of the testator, and the proerty is carried away before the adoption tqakes place. It is also obvious that the consent or non-consent of the natural father cannot in such cases affect the question. But it is quite different when the adoption is antecedent to the date at which the disposition is meant to take effect.
The rights which flow from adoption are immediate and the disposition, if given effect to, is inconsistent with these rights and cannot of itself vi propria affect them.'
The law bearing on the subject is crystallised in this passage. What follows from these observations is that the adopted son whose adoption was subsequent to the will coming into force, cannot question the dispositions made by the testator who under the same instrument has authorised his wife to adopt. The adoption has not the effect of invalidating the legacies given under the will.
(8) Mr. Sarma, the learned counsel for the appellants contended tht the observations of the Judicial Committee with regard to the effect of will are merely obiter, and that the madras High Court in several decisions had refused to give effect to them. In support of this submission, he relied on a Judgment of a Bench of the Madras High Court in -- 'Erran Reddy Chenchu Krishnamma v. Maram Reddy Lakshminarayana', AIR 1928 Mad 271 (B).
Wer do not think this ruling really helps the appellants. In that case, thetestator after giving an absolute right to his wife in all his properties, added that if his wife desired at any time to adopt a boy, she could adopt any boy whom she liked. Construing this will, the learned Judge decided that the bequest to the wife with absolute rigfhts was by a necessary intendment only a provisional one. Option was given to her, according to thelearned Judges, under the will either to keep the property that was given to her absolutely or tomake an adoption, in which event, she would he divesting herself of the estate that ws vested in her under the terms of the will.
The learned Judges observed that the testator could not have contemplated that the widow should adopt a boy to perform the spiritual duties enjoined on him, and at the same time, he would not get anything. In such a situation, their lordships said that the adoption had the effect of defeating the dispositions in favour of the adopting mother. There is nothing in the judgment to indicate that the learned Judges were not prepared to accept the concept underlying the passage in 'AIR 1927 PC 139 (A)'.
On the other hand, 'AIR 1927 PC 139 (A)', is referred to and the principle enunciated therein is adopted by the learned Judges.
(9) Another case cited by Mr. Sarma as supporting his contention is -- 'Sukhdevdoss v. Mt. Choti Bai', AIR 1928 Mad 118 (C). There a Hindu made a will in favour of his wife leaving his whole estate to his wife with absolute rights. There was no prohibition in the will against his wife adopting a boy. His widow adopted a boy, and she executed a deed settling all the properties she got under the will on the adopted son.
When disputes arose between the parties, the adopting mother sought a declaration that the adoption was not valid for the reason that the last male holder had left no estate that could devolve upon the adopted son. This prayer was not granted as the learned Judge had come to the conclusion that despite the fact that there was no estate which could pass on to the adopted son, the adoption was valid.
It was also held that the estate had vested in the adopted son by reason of the deed executed by the adopting mother. Reilly J., one of the Judges constituting the Bench, held that the adoption by the widow did not divest her of the absolute estate, but it was the settlement made by the widow that entitled the adopted son to get the property. That other learned Judge, Philips, Offg. C. J. while agreeing with this conclusion of Reilly J., remakred that he was inclined to think that although the widow held an absolute estate from her husband, the adoption of 1st defendant would have the effect of vesting that estate in him.
We do not think that any observations made by the learned Judge in the course of his judgment were calculated to throw any doubt on the validity of the observations in -- 'Krishna Murthi v. Krishnamurthi (A).' It is remarked by the learned Judge thus:
'The exception grafted on to the Hinud theory of adoption that bequest to other people by will are not affected by the subsequent adoption appears tobe based upon the theory that the father before the adoption was in a position to make effective gifts and bequests and that such dispositions should not be disturbed by the intervention of the widow in making an adotpion, that is to say, that the rights properly obtained by third parties are not to be defeated by the mere will and pleasure of the widow.
This is quite different from saying that a widow shall not divest herself of her own free will. She can make an adoption, or she can refuse to make an adotpion, and this is entirely a question of her own will and pealsure. If shewishes to make an adotpion and thereby divest herself of her estate, is there any principle of law which would prevent her from doing so?'.
In our opinion, the lerned Judge has merely stated the rule that was stated AIR 1928 Mad 271 (B) to which he was a party, and he was not attempting to lay down any new doctrine. No decision has been brought to our notice, which either expressly or by implication has cast any doubt on the rule stated in Krishnamurthi v. Krishnamurthi (A).
(10) Mr. Sasrma then fell back upon soma passages in Mayne on HIndu Law Usage, 11th edition, at page 258. We do not think that the passages referred to by the learned counsel have any bearing on the present enquiry. The learned author far from disapproving he statement of law contained in Krishnamurthi v. Krishnamurthi (A) has quoted with approval that is extracted above and has also stated that certain decisioins resting on the older view are inconsistent with the decision in Krishnamurthi v. Krishnamurthi (A).
We therefore think that it is now too late in the day for the appellants to contend that the adoption of the 2nd defendant operates to defeat the rights of the widow Subbamma, conferred on her by her husband under the will of Subrahmanyam, under which the power to adopt the 2nd defendant is derived. The finding of the learned Subordinate Judge in that behalf is therefore confimed.
(11) This leads us to the question whether the 1st defendant was under a liability ot render an account to the plaintiff as directed by the lower court. It is argued by Mr. Sarma that under the will of Subbamma, no liability was cast on his client, the 1st defendant, to give an account of the profits and that he had every right to enjoy the income as long as he liked.
We do not think that there is any warrant for this cotnention either under the terms of the will or in general law. It is not disputed that he was in possession and enjoyment of the properties till the filing of the suut. By and under the said will, he could only continue to be in possession of the property for two years after the death of Subbamma. He subsequent management of the properties can be traced only to the understanding that was reached between the parties after the death of Subbamma as spoken to by P. W. 1, the plaintiff.
It is true that the 1st defendant deposed that there was no arrangement as pleaded and spoken to by the plaintiff, but the Subordinate Judge who had the advantage of seeing the witnesses has chosen to rely on the testimony of the plaintiff, and we cannot see our wayto differ from him in this respect. The 1st defendant having had the advantage of the income for these years has to disgorge himself of it and there is no justification for his refusing to render an account of the profits received by him during the period.
(12) There remains the controversy contering round the issue of limitation as regards accountability. Mr. Sarma relied on Art. 109 of the Limitation Act according to which the suit for the profits of immovable property belonging to the plaintiff has to be filed within three years of the receipt of the profits. It is argued by the learned counsel that the acounting should be confined only to three years in view of the terms of this article. We find it difficult to give effect to this argument.
The sine qua non of the application of art. 109 is the wrongful receipt of the profits by the person that has to account for the profits. In this case, if the possession of immovable property from which the profits are derived is not wrongful, the suit will be outside the purview of this Article. The Ist defendant got into possession of the property in pursuance of the directions contained in the will of Subbamma.
Subsequently, he was authorised to meanage the properties by all parties concerned. At no time, therefore, his possession could be said to be wrongful. All that the 1st appellant can ask for is that he should not be made liable for mesne profits but only for the profits. The Subordinate Judge has only given a decree in respect of the profits. We think that the present suit is not governed by Art. 109 and, in our opinion, the Subordinate Judge was right in his conclusion even in regard to this matter, and his finding is unassailable.
(13) We may have to mention here that the finding of the Subordinate Judge with regard to the factum of adoption was not disputed by the learned Advocate General appearing for the 1st respondent. The learned Advocate General stated that it was not necessary for him to try to displace that finding as all that his client asked for is only for the 'A' schedule properties which the plaintiff got under the will of her mother.
(14) In the reuslt, the decision of the Subordinate Judge is confirmed. The appeal fails and is dismissed with costs.
(15) Appeal dismissed.