The plaintiff (respondent) is the junior widow of her husband who executed the will Exhibit A (September 1913) providing (1) that his senior widow should adopt a suitable boy after his death and (2) that if after such adoption disagreement should arise between his junior wife (on the one side) and his senior wife and the adopted son (on the other side) the junior widow (present plaintiff) should be given absolutely 15 acres out of a larger area of lands (there are certain other provisions in the will unnecessary to detail for the decision of the present case).
The senior widow (1st defendant) adopted the 2nd defendant on the next day after her husband's death and (according to the dictum of the Privy Council in Pratapsingh Shivsingh v. Agarsingji Rajasangji he stands in as good a position as if he was the posthumous son of his father.
It was not alleged or contended in the lower courts (much less proved) that the senior widow at the time of the adoption caused the 2nd defendant's natural father to agree to the adoption being made subject to a liability on the part of the adopted son to give to the plaintiff the 15 acres whenever she demanded the land and hence the case in Vedanayaga Mudaliar…(Plaintiff), v. Vedammal…(Defendant), .*, does not help the plaintiff.
The status and the rights of the adopted son have been now well settled by the decision of the Privy Council and by the decisions of the High Courts in India.
A Hindu has no such power of alienation over ancestral properties as would affect the rights of his adopted son unless the alienation was made for necessity, even if the alienation was made during the life time of the father.
An attempted alienation by will to take effect on a certain contingency expected to occur after an adopted son comes into existence subsequent to the death of the testator stands of course on a much weaker basis.
In the result the decrees of the lower Courts awarding to the plaintiff 15 acres of lands according to her prayer in the plaint are set aside and the suit is dismissed without prejudice to the plaintiff's right to sue for maintenance and residence under the general law.
The respondent will pay the appellant's costs in this Court and the parties will under the circumstances bear their respective costs in the lower Courts.
S.SDecrees set aside.