1. This is now in effect a suit for possession by the plaintiff and the contest lay between the widow of Thotapally Sarvabhotla Krishnayya (junior) the adopted Bon of Thothapally Sarvabhotla Krishnayya (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 Krishnayya (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 an argument based on a verbal agreement prior to the adoption and prior to Ex. I. 80 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 Krishnayya 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 lifetime 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 Homo, (the sacrifice performed at the time of the adoption) etc., you put him in my x 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.' 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 lifetime shall be enjoyed after my death by the said Krishnayya'. On this the Subordinate Judg6 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 a3 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 (Subbamma) 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 his assumption already settled all she intended to settle by the gift of the schedule properties. It seems also improbable that she intended an absolute estate for herself--otherwise the words 'after being utilised by me during my lifetime' 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 laBt sentence in Ex. I is relied on by the respondent; that only shows a gift in proesenti to Krishnayya. The scheduled properties passed at once--but the remaining properties did not, being retained by Subbamma herself for 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 terms 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.
2. I now proceed to deal with the cases cited to us. In Henderson v. Cross (1861) 29 Beav. 216 : 9 W.R 263 Sir John Romilly, M.R. said: 'All these questions turn upon 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.' 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 lifetime' on the ground that if the legatee left a portion of the interest unspent it could not go to the remainder man (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 Richards v. Jones (1898) 1 Ch. 438 Byrne, J., distinguished In re Pounder (1887) 56 L.J. Ch. 113. 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 lifetime 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 any absolute estate by the settler as pointed out above. In Ross v. Ross (1819) 37 E.R. 334 it was held that the words used conveyed an absolute estate to the first taken and could not be cut down by a subsequent proviso. In Albert Karunakaran Stephen v. Administrator-General of Madras (1925) M.W.N. 308 : 49 M.L.J. 197 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.
3. On the other hand we have In re Pounder (1887) 56 L.J. 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 un disposed of, to other persons. Hold 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 for a life-estate. The learned Judge referred to and followed In re Thomsons Estate (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 Court of Appeal 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 express opinion that the donee took only a life-estate with full power of enjoying the property in specie. In Hara Kumari Dasi v. Mohim Chandra Sarkar 12 C.W.N. 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 Motilal v. Kanialal Trikamlal 17 Bom. L.R. 705 In re Pounder (1887) 56 L.J. 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 lifetime 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' 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. Meherbai 64 Ind. Cas. 397: A.I.R. 1922 Bom. 179. 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. Memorandum of objections by 4th defendant is dismissed, no costs. Amendment of plaint ordered by lower Court will now be formally effected.
4. I agree.