The Chief Justice.-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. The first defendant who died pending the suit was the widow of Dattatrayalu. Dattatrayalu left behind him his last will and testament dated 2 7th 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 Venkatanara-sayya, 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 extent 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, 1 acre 50 cents to his elder sister Ramappa and one acre to his younger sister Mahalakshmi. Out of the remaimng 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 the 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 case 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, by 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 properties 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.

It was in 1937, nearly 40 years after the date of the settlement, that the first defendant 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.

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 Durgayya 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.

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 a

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