Alfred Henry Lionel Leach, C.J.
1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Rajamannar, J. : AIR1946Mad99 reversing a decree of the City Civil Court. The suit was filed by the appellant who is the adopted son of one Thiruvengadachari and his wife Alangarammal, both of whom are now dead. The plaintiff claimed possession of a house with mesne profits by virtue of a deed of settlement dated the 11th July, 1930. The City Civil Court held that the plaintiff was entitled to the relief asked for as he took an absolute interest in the property on the death of his adopted father. Rajamannar, J., considered that the deed did not operate as a settlement on the son and consequently he allowed the appeal. We are of the opinion that the deed does operate as a settlement in favour of the plaintiff.
2. In 1930, Thiruvengadachari was 62 years of age. He had decided to adopt the plaintiff, but he was anxious that some provision should be made for the maintenance of his wife, should he predecease her. The deed of the 11th July, 1930, recites these facts. After the settlement of the property on his wife for life, there are these statements in the deed:
After your lifetime, the aforesaid boy whom we are going to adopt shall take possession, help and enjoy the aforesaid house and site with absolute right and title. You shall enjoy only the rent-income from the aforesaid house, as mentioned above, till your lifetime, and you shall have no power to subject the aforesaid house and site to any encumbrances or alienations such as mortgage, sale, etc. In the event of your death during my lifetime itself, I shall enjoy the aforesaid house and site, subject to the conditions aforesaid.
We have here a direction that the boy to be adopted was to take the property absolutely after the death of his adoptive mother, but should the settlor's wife predecease him, he himself should take a life-interest in the property but subject to the conditions which applied to his wife, namely, that he should enjoy the property during his lifetime without power of alienation and on his death it should go to the boy to be adopted.
3. Rajamannar, J., considered that there was here no gift in presenti. With great respect we do not share his opinion. We consider that the document must be read as conveying an absolute interest to the plaintiff on the death of his adoptive parents. The adoption took place two days later and was evidenced by a deed under which the adoptive father conveyed to the plaintiff the property which he himself had received at a partition with his brothers.
4. It is manifest that Thiruvengadachariar did not contemplate a second marriage but his wife died in 1931 and soon after, he married the first defendant by whom he had a son, the second defendant. Thiruvengadachariar died in 1941. From what we have said it follows that in our judgment, on his death, the plaintiff took the property in suit absolutely.
5. Mr. Raghava Rao, on behalf of the contesting defendants, has suggested that the house in suit becomes ancestral property in the hands of the plaintiff. He raised this question before Rajamannar, J., but it was not accepted. The learned Judge said that if it were necessary he would be prepared to hold that there was no intention on the part of the executant that the adopted boy had to share the property with any other son that might be born to him subsequently. We agree with this observation and it disposes of the last contention of Mr. Raghava Rao.
6. The appeal is allowed and the decree of the trial Court restored with costs throughout.