1. The plaintiff is the appellant. He filed a suit in the Court of the Subordinate Judge of Amalapuram for a declaration that he was the adopted son of one Dattatrayalu and for possession of the properties set out in schedules B and C to the plaint from the several defendants who were in possession of portions of them. Defendant 1 who died pending the suit was the widow of Dattatrayalu. Dattatrayalu left behind him his last will and testament dated 27th November 1896. In and by this will he gave his widow authority to make an adoption to him, but he indicated that she should adopt one Durgayya son of Venkatanarasayya, his nearest gnati and only in case the natural father of the said boy was unwilling to give him in adoption, she was given authority to take in adoption any boy of her choice. He owned an extant of 11 acres 75 cents in Indupalli and he disposed of these properties as follows: He gave absolutely 2 acres to his elder brother Subbayya Sastrulu, l acre 50 cents to his elder sister Ramappa and one acre to his younger sister Mahalakshmi. Out of the remaining extent of 7 acres 25 cents he gave to his mother Seshamma 2 acres 25 cents to be enjoyed by her for her lifetime. He bequeathed the remaining 5 acres and the remainder after the life estate of Seshamma in 2 acres 25 cents to his adopted son. He gave his wife a right to reside in a portion of the family house and to enjoy during her lifetime 2 acres of land out of the lands bequeathed to the adopted boy in case she and the adopted boy did not agree to reside together. After her death, these 2 acres were to devolve on the adopted boy. Clause 7 of the will is as follows:
'In cage adoption does not take place even in this manner, the properties intended for the adopted boy shall belong to my mother and elder brother.' Shortly after Dattatrayalu's death, there was a deed of settlement executed on 8th October 1897 toy Subbayya Sastrulu, the brother of the deceased and Seshamma, his mother in favour of the widow. The deed recites that as the widow did not desire to adopt according to the will of her husband, as per the advice of mediators and, on the understanding that Subbayya Sastrulu and Seshamma should give to the sisters of the deceased the extents of land bequeathed to them under the will, the pro-parties left by Dattatrayalu should be divided between the parties as follows: the widow to get about 6 acres and Subbayya Sastrulu to take about 5 acres 32 cents and the house set out in schedule C. Apparently, this deed of settlement was acted upon by the parties for a considerable time and the widow did not make any adoption. On the other hand, the parties, namely, both the widow and Subbayya Sastrulu made alienations of the portions of the property which fell to them under the deed.
2. It was in 1937, nearly 40 years after the date of the settlement, that defendant l, the widow purported to adopt the plaintiff on 2nd May 1937. Now the alleged adopted son seeks to set aside the alienations made by the widow and by Subbayya Sastrulu.'
3. Both the factum and the validity of the plaintiff's adoption were questioned by the defendants. The learned Subordinate Judge found that the adoption of the plaintiff was true but it was not valid, because it was not in due exercise of the authority conferred on the widow by the terms of the will. He found that the authority was not strictly acted upon, because the boy Dargayya was available for adoption but was not taken in adoption. He also held that the alienations sought to be attacked by the plaintiff were valid and binding on him.
4. The plaintiff who is the appellant attacks the findings against him in respect of both his adoption and the alienations. On the question of adoption, we have not been referred to any direct authority. There can be no doubt that if the husband when giving authority to the widow directs that a particular boy should be adopted, the widow would have no power to make an adoption of another boy unless the boy mentioned by her husband was not available. At the same time it is clear that if the boy indicated by the husband is not avail-able the widow has the power to make an adoption of another if there is a general intention manifest in the document that the widow should make an adoption. The difficulty in this case is that at the time of the death of Dattatrayalu and for several years thereafter, Durgayya was available to be taken in adoption. Now, it is clear that if during that time the widow had adopted another boy, then that adoption would have been invalid, Actually, however, the widow did not make any adoption during that period. When she did make an adoption in 1937, admittedly Durgayya was not available to be adopted. The question is whether in these circumstances the adoption can be held to be invalid. It is quite clear from the recitals in the deed of settlement of 1897 that at that time the widow did not intend to make an adoption. But surely it cannot be said that therefore she is precluded for all time from changing her mind and making an adoption. It is now well established that the motive of a widow in making an adoption is absolutely irrelevant for deciding on its validity. What then is the position? On the date of the adoption, it obviously could not be said that the boy indicated by her husband was available. If so, there is nothing in the will to prohibit the widow from adoptiong any other boy. In the absence of direct authority we find ourselves unable to hold that because the boy indicated by her husband was available at some period after her husband's death when she could have made an adoption, the widow is precluded from making an adoption at a future date when at that time the boy indicated by the husband is not available. The general law undoubtedly is that in spite of the conferment of an authority to adopt by her husband, the widow is not under an obligation to make an adoption. If so, we fail to see why even if the widow postpones making an adoption till the boy indicated by her husband, whom she may not like, is no longer available, an adoption made of another boy after he ceases to be available should be held to be invalid. Really, we would then be trenching into a field which it is now established is outside the scope of the question as to the validity of the adoption, namely, the field of the widow's motive. We do not think that the doctrine of fraudulent exercise of a power could be imported into the region of Hindu law of adoption so far as the widow is concerned. We therefore differ from the learned Subordinate Judge and hold that the plaintiff was validly adopted by defendant 1 to her husband.
5. We agree with the learned Subordinate Judge that the alienations of items 5, 6, 7, 8 to 10 and Schedule C should be upheld. Items 5 and 6 were sold by the widow under EX. D-l for Rs. 1000/-. Out of the consideration, Rs. 400/- went to discharge an admittedly binding debt, but there was no recital of necessity as regards the remaining Rs. 600/-. The learned Judge found from the surrounding circumstances that the widow must have had necessity to make the alienation. She had only an income of Rs. 80/- out of which she had to pay Rs. 10/- to her mother-in-law. Apparently it was not possible to sell a portion of the property just sufficient to secure her needs and even if it is not now established after the lapse of a long time how the money was needed, we think that it is reasonable to infer that there was necessity for the alienation. This alienation must be upheld.
6. Item 7 was not alienated by the widow but it was sold by Subbayya Sastrulu. The money realised went to discharge the mortgage debt due by Dattatrayalu. So far as this item and items 8 to 10 of B and C schedule property are concerned which were also sold by Subbayya Sastrulu under Ex. D-14, the position is slightly different from the other alienation. The title of Subbayya Sastrulu in respect of these items is to be traced to the deed of settlement in 1897. The learned advocate for the appellant attacked this settlement deed as not binding on the adopted son. But we think that having regard to the circumstances which obtained on the date of that deed, it was a bona fide family settlement which was acted upon for a considerable length of time and we see no reason to set it aside, simply because there was an adoption of the plaintiff in 1937. Admittedly the items alienated fell to the share of Subbayya Sastrulu according to the settlement deed in which case no question of necessity arises. This alienation must also be upheld.
7. There remains the alienation of items 1 to 4 which are in the possession of defendants 2 to 4. The learned Judge held they had no right to these properties as there was no proof that they were in possession under a valid alienation. We accept this finding with the result that the plaintiff would be entitled to a decree for possession of items l to 4 from defendants 2 to 4.
8. The appeal is allowed to the extant indicated above but is dismissed with costs as against the contesting respondents 4, 9, 10, 13 and 14 (one set). The appellant will pay the court-fee due to the Government.
9. (The appeal having been set down to be mentioned this day the Court made the following Order): The costs of the respondents will be apportioned between the different sets of respondents in accordance with the value of the properties in which they are interested. The plaintiff will also have a decree for mesne profits against defendants 2 to 4 in respect of items 1 to 4 from the date of the plaint till delivery of possession. Plaintiff will have proportionate costs against defendants 2 to 4 here and in the Court below.