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 21st 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 21st May, 1908, the date of Thotapally Sarvabhotla Krishniah's (junior's) adoption entered into by the 1st 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.
4. I now proceed to deal with the cases cited to us. In Henderson v. Cross (1861) 29 Beav. 216 Sir John Romilly, M. R., said:
All these questions turn on this--whether the original gift is a gift of a life-estate with a power over the corpus of the fund or whether it is an absolute interest which is attempted to be cut down.
5. On the words used there, it was held an absolute gift of all the testatrix's property 'to spend both principal and interest or any part of it during his life-time' on the ground that if the legatee left a portion of the interest unspent it could not go to the remainderman (testatrix's sister) because it could not be made less than a life-interest and by the words quoted principal and interest were put on the same footing. There is no such distinction here. In In re Jones. Richards v. Jones (1898) 1 Ch. 438 Byrne, J.,1 distinguished In re Pounder (1886) 56 LJ Ch. 113 (cited below). The testator gave property to his wife for her absolute use and benefit and full powers of disposition of his property, etc., for her maintenance and support and after her death as to such parts of his estate as she may not have sold or disposed of to others. It was held that the words 'for her absolute use and benefit' were not cut down by the words 'so that during her life-time for the purpose of her maintenance and support she shall have the fullest power to sell and dispose of my said estate absolutely,' but that the latter were expressive of the object with which the testator made the absolute gift. The principle does not apply here as there is clearly no reservation of an absolute estate by the settlor as pointed out above. in Ross v. Ross (1819) 37 LR 334 it was held that the words used conveyed an absolute estate to the first taker and could not be cut down by a subsequent proviso. In Karunakaran v. The Administrator-General of Madras (1925) 22 LW 94 it was a case of an absolute vesting in the widow with a pious hope ('after her death she should, etc.') that she might respect the testator's wishes.
6. On the other hand we have In re Pounder (1886) 56 LJ Ch. 113. The testator by his will gave all his residue to his wife absolutely : by a codicil he revoked this gift and made another gift to her. It was held that he intended to alter his will by the codicil by which he left the residue to his wife 'for her absolute use and benefit and disposal, but without prejudice to her powers of disposition' in case at her decease any part thereof should remain undisposed of to other persons. Held a limited interest with power of disposal. In the case before us we have no such words as 'absolute use and benefit, etc. '. What is reserved is clearly a life-estate. The learned judge referred to and followed In re Thomson (1880) 14 Ch. D. 263 which has, I think, a material bearing on the case before us. A testator gave all his property to his widow for the term of her natural life to be disposed of as she may think proper according to the nature and quality thereof and 'in the event of her decease, should there be anything remaining' to certain other persons. Hall, V. C., held that as the gift was only for life the succeeding words only conferred a power and not property. It was thus a life-estate with a power of disposition inter vivos. The case went to the C. A. where the actual decision was that the widow had no power of disposition by will, but two of the learned Lords Justices were of the expressed opinion that the donee took only a life-estate with full power of enjoying the property in specie. In S. M. Hara Kumari Dasi v. Mohim Chandra Sarkar (1908) 12 CWN 412 there was a similar case to which a similar construction was applied in order to give effect to all the words in the will. In Mafatlal v. Kanialal : AIR1915Bom246 In re Pounder (1886) 56 LJ Ch. 113 was followed and the words
If I die then my son's wife Bai Ganga is the owner of the above-mentioned immoveable and moveable properties.... The said Ganga shall during her life-time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease her two daughters are the owners thereof
were construed to confer a life-estate on the wife with a power of disposition inter vivos. The case is also referred to and the construction followed in Mithibai v. Maharabai ILR 46 B. 102. There is thus ample authority in this country as well as in England for holding that there may be a life-estate with powers of disposition and on the construction of this document and on a consideration of the law there is no doubt in my mind that Subbamma intended to reserve to herself a life-estate with full powers over the corpus during her life and that as to whatever property was left the adopted son was to succeed. The appeal, therefore, succeeds and the decree of the Lower Court will be modified accordingly. The 2nd respondent must pay appellant's costs throughout. Appeal as against 2nd defendant is dismissed with costs. Memorandum of objection by 4th defendant is dismissed, no costs. Amendment of plaint ordered by Lower Court will now be formally effected.
7. I agree.