Judgment

RAMASWAMI, J. : This appeal is brought on behalf of the defendant against the judgment and decree of the High Court of Andhra Pradesh dated December 16, 1958 in A. S. No. 284 of 1954 whereby it reversed the judgment and decree of the Court of Subordinate Judge, Vijayawada in O. S. No. 171, of 1950.

2. In the suit which is the subject-matter of this appeal the plaintiff alleged that he was duly adopted by the defendant - the widow of Lakshmayya - and therefore entitled to properties mentioned in Schs. A and B of the plaint. The plaintiff also asserted that, apart from his right as an adopted son, he was entitled to the properties claimed as a persona designata under the will dated November 30, 1946 - Ex. B-1 executed by Lakshmayya. The suit was contested by the defendant who alleged that the plaintiff was not adopted as the son of Lakshmayya. The trial court rejected the case of the plaintiffs that he was adopted by the widow after the death of Lakshmayya. The trial court further held that the plaintiff was not entitled to any rights under the will as a persona designata. The trial Court accordingly dismissed the suit. On appeal by the plaintiff the High Court confirmed the finding that no adoption had been made. It, however, held on the construction of the will that the plaintiff was entitled to the properties claimed as a persona designata. The High Court allowed the appeal and granted a decree to the plaintiff for possession of the properties subject to certain incidental directions given in the decree.

3. The question presented for determination in this appeal is whether the High Court was right in holding that upon a true construction of the will - Ex. B-1 there was a gift of the properties to the plaintiff as a persona designata.

4. It is necessary, at this stage to set out the material provisions of the will - Ex. B-1 executed by Lakshmayya :-

"I have no male or female issue. I have wife, by name Sivapanchakshari, mother by name Basavamma, and elder brother by name Somaiah. For the last 10 days I am suffering from a disease akin to paralysis and fearing that I may not survive, I make the following settlement as set clown below to take place after my life.

A.C.

Land called Mallukunta 1-60

Out of Raksh kunta (?) vadde land 1-25

Out of Maddurivari land 1-05

Out of Pooravarnamvari land 2-60

Total 6-50

Six acres and (50) fifty cents seri wet land; 10 cents in Kolli Chinna Bapaiah s (back) yard; and 300 yards of house-site towards the west of my house (belonging to my mother-in-law) with a tiled house thereon. have been settled upon my wife to enjoy as she likes with all rights of gift, mortgage, exchange, sale, etc.

2. Southern side garden 80 cents (eighty cents of seri wet land) has been settled upon my mother Basavamma to enjoy with all rights of gift, mortgage, exchange, sale etc.

3. It has been settled that my wife should take, the 2nd son of my elder brother, Yalamanchili Somaiah, in adoption, celebrate his marriage, etc., and after he passes his minority she should deliver possession of my other movable and immovable properties that I have and described here below. During the life time of my wife, if the adopted son and she live together without any trouble, (she) is to live in my house, and if there is disagreement between the adopted son and my wife, (she) is to live in a room of my house.

My wife has been given power over my minor (son s) property, to collect debts due to me and to discharge debts due by me.

The testator then mentioned two items of debts due to him. He thereafter enumerated the debts due by him which aggregated to Rs. 15,803/-. A description of the land is also given.

4. The question involved in this appeal is whether the disposition of the properties to the plaintiff is as a persona designata or by reason of his fulfilling a particular legal status, namely, the adopted son of the testator. The question in such a case is really one of intention of the testator which must be ascertained from the languag