Judgement Appeal from a judgment and decree of the High Court (March 12, 1912) affirming a judgment and decree of Wallis J. (March 26, 1909). By a will made in 1889 V. Venkatarama Pillai (hereinafter called the testator) referred to his intention to adopt Venkatakrishna Pillai, and, in the event of his death before the said adoption was completed, authorized his widow Subbammal to complete the adoption, and further provided that if the son to be adopted should die during his widows lifetime she might take in adoption one of the sons of the testators daughter Rajammal. At the time this will was made the testator was the sole surviving coparcener of the property to which it related, but upon the adoption taking place he ceased to be so. 17 Law. Rep. 43 Ind. App. 20 ( 1915- 1916) V. Venkatanarayana Pillai V. V. Subbammal 118 In February, 1890, the testator duly completed the adoption of Venkatakrishna Pillai, and in March, 1890, he executed a second will. By that will he disposed of his property in favour of his said adopted son, and provided (by clause 5) that in the event of the death of the adopted son the property should be enjoyed by his issue, with further dispositions in the event of the adopted son dying without issue. The will contained no clause revoking the previous will or the authority to adopt. The testator died in April, 1890, leaving him surviving his widow Subbammal, his daughter Rajammal, and his said adopted son. The will of 1890 was admitted to probate. In 1891 the adopted son died without issue. In 1894 the testators brother (the original appellant) obtained a decree setting aside the will of 1890 on the ground that it dealt wholly with ancestral property over which he had no power of disposal. In 1906 Subbammal, acting under the authority contained in the will of 1889, adopted the second respondent, a son of Rajammal. The original appellant thereupon instituted the present suit to set aside that adoption on the ground that the widow had no subsisting authority to adopt. Wallis J. dismissed the suit, being of opinion that the invalid will of 1890 did not revoke the authority to adopt contained in the will of 1889. This decision was affirmed on appeal to the appellate jurisdiction (Sir Charles Arnold White C.J. and Sankaran Nair J.). Wallis J. dismissed the suit, being of opinion that the invalid will of 1890 did not revoke the authority to adopt contained in the will of 1889. This decision was affirmed on appeal to the appellate jurisdiction (Sir Charles Arnold White C.J. and Sankaran Nair J.). The learned judges were of opinion, agreeing with Wallis J., that the second will was inconsistent with the first, and that if it had been operative there would have been a clear revocation of the earlier will. After considering the authorities with regard to the doctrine of dependent relative revocation referred to in Jarman on Wills, 6th ed., pp. 148, 169, and 170, they agreed with the view of Wallis J. that the principles laid down in Alexander v. Kirkpatrick (L. R. 2 H. L. Sc. 397.) applied, and that, since the intention to revoke could only be found in the later invalid disposition, the original authority remained effective. The appeal was accordingly dismissed. The original appellant appealed to the Privy Council and died pending the hearing. By an order made on March 23, 1915, the appeal was revived and V. Kuppusami Pillai, the next reversioner, was substituted in place of the original appellant. The proceedings upon the petition for that order and their Lordships judgment thereon are reported at L. R. 42 Ind. Ap. 125. 1915. Nov. 3. Sir R. Finlay, K.C., and Dube, for the appellant. Clause 5 of the will of 1890 is wholly inconsistent with the authority to adopt contained in the will of 1889, and shows, as both Courts in India held, an intention to revoke that authority. Though the will of 1890 was invalid as a testamentary disposition, it operated as a revocation of the previous authority to adopt. The failure of a second will owing to the incapacity of the devisee, or other extrinsic circumstance, does not prevent it from being an effectual revocation of an earlier will Tupper v. Tupper (( 1855) 1 K. & J. 665.) ; Baker v. Story (( 1875) 31 L. T. (N.S.) 631.); Quinn v. Butler. (( 1868) L. R. 6 Eq. 225.) The principle of these cases applies where, as in the present case, the later instrument fails, because there is no testamentary power of disposition over the property. All parties regarded the will of 1890 as containing a testamentary disposition of the whole property and probate was taken out. (( 1868) L. R. 6 Eq. 225.) The principle of these cases applies where, as in the present case, the later instrument fails, because there is no testamentary power of disposition over the property. All parties regarded the will of 1890 as containing a testamentary disposition of the whole property and probate was taken out. Cases such as Onions v. Tyrer ((1716) 1. P. Wms. 342 ; 24 Eng. Rep. 418.), where the second instrument failed owing to a technical intrinsic defect, are distinguishable. The decision in Alexander v. Kirkpatrick (L. R. 2 H. L. Sc, 397.) is not applicable, since there the disposition by the earlier instrument could not be set aside except by a second valid disposition. An authority to adopt is in a different position to a disposition of property and is defeated by an instrument showing an intention to revoke, although the instrument is not a valid disposition of the property. 17 Law. Rep. 43 Ind. App. 20 ( 1915- 1916) V. Venkatanarayana Pillai V. V. Subbammal 119 De Gruyther, K.C., and Kenworthy Brown, for the respondents, were not called upon. Nov. 17. The judgment of their Lordships was delivered by LORD WRENBURY. At the date of the first testamentary instrument, namely, September 8, 1889, the testator, Venkatarama, was sole surviving coparcener of the property here in question, It was ancestral property, but a division had been effected, and of the testators divided share he had no coparcener. He could, therefore, dispose of it. Under those circumstances he made a will dated September 8, 1889, which contained an appointment of his wife and his daughter to be executrixes, and for the present purpose consisted of two parts, namely, (1.) a disposal of the property in a certain way, and (2.) an authority to his widow in a certain event to take a son by adoption. He had, and it appears by the will that he had, nominated as his son Venkatakrishna, who was a son of his daughter Rajammal, but he had not completed the adoption. He had, and it appears by the will that he had, nominated as his son Venkatakrishna, who was a son of his daughter Rajammal, but he had not completed the adoption. By his will he directed that if he should die before completing the adoption his wife Subbammal should, after his death, complete the necessary ceremonies and take the said grandson in adoption, and his will contained the following clause " In case any danger may happen to my grandson Siranjeevi Venkatakrishna Pillai during the lifetime of my wife Subbammal who is one of my executrixes my wife Subbammal may according to her wishes take in adoption one of my aforesaid daughter Rajammals sons, and give my properties to that son." An argument was tentatively put forward, but was not pressed by the appellants counsel, that this document was not a will. Their Lordships can entertain no doubt that it was a will. It contained an appointment of executors, and (as has already been pointed out) it was executed by a testator who at its date could dispose of the property of which he purported to dispose. On February 9, 1890, the testator completed the adoption of Venkatakrishna. Another member of the coparcenary thus entered the joint family, and when the testator subsequently died the property was ancestral property, of which he was not at that date competent to dispose. In this sense, and to this extent, the will of September 8, 1889, became ineffectual. On March 21, 1890, the testator executed another will. It contains a new appointment of executors. They are the two executors appointed by the will of September 8, 1889, and a third. It discloses on its face that the property of which it purports to dispose is ancestral, but nevertheless purports to dispose of it, although at this date the testator had a coparcener and could not dispose of it. It contains in clause 5 a gift that, in case Venkatakrishna shall happen to die at any time, his issue shall enjoy the property. It contains no words of revocation of the previous will, is wholly silent as to adoption, and does not refer in any way by revocation or otherwise to the clause in the will of September 8, 1889, set out above, which gave the widow a contingent power of adoption. On April 4, 1890, the testator died. It contains no words of revocation of the previous will, is wholly silent as to adoption, and does not refer in any way by revocation or otherwise to the clause in the will of September 8, 1889, set out above, which gave the widow a contingent power of adoption. On April 4, 1890, the testator died. The will of September 8, 1889, was not, and the will of March 21, 1890, was, admitted to probate. On June 4, 1891, Venkatakrishna died. In 1893 the plaintiff in the present proceedings, being the brother of Venkatarama and thus reversionary heir to Venkatakrishna, instituted a suit, and on November 20, 1894, obtained a decree that the will of March 21, 1890, was null and void, and inoperative according to Hindu law. This must have meant as regards the disposal of the ancestral property. In this state of facts the widow Subbammal on August 13, 1906, adopted the defendant Parthasarathi. The present suit is one instituted by Venkatanarayana, as reversionary heir of Venkatakrishna, against Subbammal, the widow, and Parthasarathi, the son adopted by the widow, for a declaration that his adoption was illegal and invalid. 17 Law. Rep. 43 Ind. App. 20 ( 1915- 1916) V. Venkatanarayana Pillai V. V. Subbammal 120 The appellant advanced two contentions, (1.) that the document of September 8, 1889, was not a will—with this their Lordships have dealt above—and (2.) that if it was a will, it was revoked by the will of March 21, 1890, and that no power existed in the widow in 1906 to make an adoption. The appellant rests his case not upon any words in the will of 1890 revoking the will of 1889, for there are none, but upon such an inconsistency between the two wills as that the provisions of the earlier will cannot stand with the existence of the later will. It has already been pointed out that the will of 1889 consists of two parts, and assuming for the moment that the contention is well founded as to the one part, namely, that which effects a disposal of the property, it does not touch the other part, namely, that which gives a power to adopt. Whether the contention is well founded as regards the other part, namely, that which effects the disposal of the property, turns upon the application of the doctrine of dependent relative revocation. Whether the contention is well founded as regards the other part, namely, that which effects the disposal of the property, turns upon the application of the doctrine of dependent relative revocation. This is really a question of intention. If by his will a testator gives property to A. and by a codicil gives the same property to B., and if in the event it turns out that B. cannot take, it has to be ascertained from the language of the testator as found in his testamentary documents whether he intended that the gift to A. should be displaced altogether or that it should be displaced only in favour of B. and (if B. cannot take) the gift to A. should remain. If, as in Tupper v. Tupper (1 K. & J. 665.), the testators language is that (1.) he revokes the gift to A. and (2.) in lieu thereof he gives to B., it may well be that there is a revocation for all purposes. If, as in Quinn v. Butler (L. R. 6 Eq. 225.), the donee of a power to charge does by his will charge with 4000/-to be paid to A. and 3000/- to be paid to B., C, and D. equally, and then by codicil revokes the aggregate charge of 7000/. made by his will and charges with 7000L for A., the charge in the will is no doubt gone for all purposes. If, as in Baker v. Story (31 L. T. (N.S.) 631.), A. takes absolutely under the will, but under the codicil takes for life only with a gift over which fails, and there is an ultimate effectual residuary gift, it is difficult to find any room for a contention that the gift by will is not gone altogether. But no one of these authorities is pertinent to the present case. Alexander v. Kirkpatrick (L. R. 2 H. L. Sc. 397.), although a case upon two dispositions of which the former contained a power of revocation, and not upon two wills, contains a principle applicable in their Lordships opinion to the present case, namely, that an alternative inconsistent disposition which is not valid or effectual in itself does not revoke an earlier disposition of the same property. 397.), although a case upon two dispositions of which the former contained a power of revocation, and not upon two wills, contains a principle applicable in their Lordships opinion to the present case, namely, that an alternative inconsistent disposition which is not valid or effectual in itself does not revoke an earlier disposition of the same property. It is admitted that by the will of 1890 the testator could not give his ancestral properties as he purported to do, but it is argued that from the fact that he purported so to give them there is to be inferred an intention that if he could not give them as he purported to do in 1890 his disposition in 1889 should nevertheless be revoked ; and the argument goes beyond this to affirm that not only his disposition of property in 1889, but also the independent provision conferring a power to adopt given in 1889, is in like manner revoked. Their Lordships do not accept either argument as well founded. The effect of that which has taken place is that there are two testamentary instruments. The later must no doubt prevail over the earlier, but the contingent power to adopt in the earlier instrument is unaffected by anything in the later. In their judgment it has been rightly held that on August 13, 1906, the widow had the power of adoption which she exercised, and the plaintiffs case fails. Their Lordships will humbly advise His Majesty that the appeal fails and must be dismissed with costs.