C. Sargent, J.
1. This suit came before the Court for further directions on the 26th February last, in order that a finding might be recorded on certain questions arising out of the will of the late Gokuldas Tejpal, and which have since been raised in the following issues numbered 33, 34, 35 in this suit:
2. Whether the infants Sundardas and Narrondas, sons of Dwarkadas Vasanji, or either of them, take any and what interest in the residuary estate of the late Gokuldas Tejpal in the event of their not being adopted?
3. Whether Shamavahoo is bound to accept the infant Sundardas in adoption upon the conditions mentioned in the petition of Mathuradas Lowji?
4. Whether, in the event of her refusing to adopt upon such conditions, the Court can and (if so) will execute the trust (if any) reposed in Shamavahoo?
5. The question raised by the first of these issues turns upon the construction to be put upon the fifteenth clause of the will, which is in the following words:
During my lifetime, or subsequently to my decease, should a child begotten by me not be born of the womb of my wife Shamavahoo, then I direct and order and appoint as follows: There is my nephew Bhai Dwarkadas Vasanji. He has now one son, to whom he has not as yet given a name. My wife Shamdvahoo is to take that son in adoption after my decease, and he is to be made my adopted son. And after what is mentioned in this my testamentary writing has been done accordingly, I give him, as inheritance, all the residue of my property left at the time, and I appoint him as my heir. The lad is to perpetuate my own name as if he were the son of my loins, and he is to pay as much respect to my wife Shamavahoo as if she were his own mother; and agreeably to her directions he is to act righteously, and my wife is to have the lad married as though he were her own son, and upon his marriage Rs. 20,000 are to be expended out of my property. And if during the lifetime of my wife should this lad die without coming of age, then my wife is duly to take in adoption such other or second son of Bhai Dwarkadas as may be living at the time, and he is duly to be treated as my son. All are duly to act towards him in all respects, agreeably to what is written above, and he is to obey my wife Shamavahoo. If by the will of Providence should so happen that there may be no other son of Bhai Dwarkadas, then I appoint my nephew Dwarkadas Vasanji as the heir to my property; and to him I give as an inheritance all the residue of my property left at the time, in the following manner, &c;,&c.;
6. But before proceeding to discuss the language of that clause, it will be convenient to consider the decisions cited at the Bar which have been already arrived at on testamentary provisions of a similar nature.
7. In the case of Doss Money Dossee v. Proaonomoye Dossee 2 Ind. Jur. 18 the testator directed his wife, (in a certain event which the Court considered had arisen), to adopt the two sons of his two uterine sisters, in doing which there should be no deviation, and he further directed that if his wife should not adopt the children after his decease, then his executors should, according to his will and in pursuance of the permission given by him, cause the said two children to be adopted. The widow made no adoption after her husband's death, and ultimately claimed the property of her husband, on the ground that he had died intestate,' except as to any property he had specifically bequeathed, and filed a suit against the executor for an account. Mr. Justice Phear, doubting whether the event had occurred on which power was given to the widow to adopt, held that in any case there was no intention to make the sons of the two sisters devisees, and that not having been adopted, they took nothing. On appeal, however, before Sir Barnes Peacock C.J., and Norman, J., it was held that the event had occurred on which the widow was to adopt; that the power might be exercised any time during her life; and that whether or no the adoption of two sons would be a legal adoption, the sons when adopted were intended to take, or as it was there was an implied gift to them.
8. The same will was considered by Phear, J., in Abhai Charan Ghose, v. Dasmani Dosi 6 Beng. L.R. 623, on which occasion the learned Judge, not considering himself bound by the decision of the Court of Appeal in the former case, expressed his dissent from the conclusion arrived at by that Court as to there being a devise by implication to the sons of the sisters, and adhered to his former decision. The language of the Court of Appeal is scarcely as clear as might be wished; but I gather that the point on which the two Courts differed was whether there was a gift to the sons if adopted by the, widow; whether or no such adoption was a legal one; and that the Court of Appeal held there was.
9. In the ease of Siddessoary Dossee v. Doorga Churn Sett 2 Ind. Jur. 32., 1 Bourke 360, the will recited, erroneously as it turned out, that the testator and his wife had adopted two boys, Hem Chunder and Moti Lal Bysack, and then proceeded to say: 'According to our Shastra the said two adopted sons will perform our obsequies and shall become 'lusts' successors to our property;' and Phear, J., held that, assuming the words to amount to a substantive gift, still the gift was conditional on the boys being adopted;--the character of adopted son and the capacity to perform the obsequies being, as the learned Judge considered, the moving consideration for the
10. In Mommothonauth Dey v. Onontnauth Dey (1) the testator begat his will b stating that he had adopted two; sons the elder to his elder wife to bring up, and the younger to his younger wife to bring up-both of them to be nurtured as sons born of their own womb. That he provided that if either of his two sons should die without issue, the wife whose foster son should have died should take another son in adoption, and he gave his property in equal shares, subject to certain legacies, to his two adopted sons. The plaintiff is the elder of the sons. The younger one died an infant without issue, upon which his mother in adoption in exercise of the power reserved to her by the will adopted the defendant in place of her deceased adopted son.
11. The Court (Trevor, J. dissentiente) consisting of Sir B. Peacock, C.J., and Shrinitronauth Pandit, J., held that whether the] adoption by the widow was valid or not, still that it was the intention of the testator that she should adopt, and that the defendant fulfilled the terms of the will, and was entitled to half the property. This decision appears to be in accordance with that arrived at in the first-mentioned case.
12. Lastly, in the case of Nidhoomoni Debya v. Saroda Perehad Mookerjee (2) the words of the will were: 'As I am desirous of adopting a son, I declare that I have adopted K., third son of my eldest brother. My wives shall perform the ceremonies according to the Shastras, and bring him up; and until the adopted son comes of age, those executors shall look after and superintend all the property, also that adopted son. When he comes to maturity the executors shall make over everything to him. Should this adopted son die, and my younger brother Nilruthan have more than one son, then my wives shall adopt a son of Ms. If at that time Nilruthan has not a son eligible to adoption, they shall adopt another son of Sawda, and the wives and executors shall perform all the above mentioned acts.'
13. The Court in its judgment says: 'The argument raised by two questions 2Ind. Jur., p. 24 whether the ceremonies were necessary for the completion, or whether all that was necessary to it had been done by the testator, who in his lifetime received the child, the child having been given by his natural father; L R. 3 Ind Ap. 255 supposing these ceremonies to be necessary, whether power having been given to the two widows, the ceremonies could be validly performed by one. But it appears to their Lordships that neither of these questions arises in this case.
The effect of the will, according to their view, is this: 'I declare that I give my property to Koibutto, whom I have adopted.' There is a gift of his property to a designated person. This direction follows: 'My wives shall perform the ceremonies according to the Shastras, and bring him up.'
'Undoubtedly the testator desired and expected that the wives should perform certain ceremonies. He requested them to do so, but it appears to their Lordships that it would be an altogether erroneous reading of the will to suppose that he intended the taking of his property by Koibutto to be entirely dependent on. whether the wives choose or did not choose to perform the ceremonies.
14. Here the circumstance that the testator had so far adopted Koibutto as to receive him in adoption, (a fact which, 1 gather from the judgment, was not it dispute,) was a strong reason for concluding that it could not have been his intention to make the mere performance of the religious ceremonies by his wives (whether necessary or not to constitute a legal adoption) a condition precedent of the devise taking effect.
15. No special rule of construction is, I think, to be gathered from these decisions. They all deal with the question as one of intention, to be gathered from the language of the particular will.
16. Now it scarcely admits of a doubt that if the words 'and after what is mentioned in my testamentary writing has been done accordingly' apply, as was contended for the widow, to the adoption of the boy, as directed by the testator in the sentence immediately preceding, the object of the gift of this inheritance can only be the boy when 80 adopted. In other words, the persona designate/, is not the son of Dwarkadas Vasanji, but such son when adopted. That would be the plain and obvious meaning of the testator's language.
17. It was contended, however, for the infant Sundardas that those words do not refer to the act or ceremony of adoption, but to the payment and setting apart of the various legacies and charitable bequests as directed by his will, and that they are to be read in connection with the word 'residue', so that the sentence would run thus: 'I give him as an inheritance the residue of my property after what is mentioned in my will has been done.'
18. Mr. Flynn was examined as to the correct translation as to this passage. His evidence was to the effect that the vernacular word 'tent', with which it commences, and which may be translated 'him' or 'to him', is at an unusual distance from the verb 'I give', if intended to be its object. On the other hand, he says that it would not be idiomatic, although grammatical, to use 'teni' without some such word as 'babat' (meaning, literally, 'in regard' or 'respect to') if it were intended to be the object of the verb translated 'done' or 'doing', and he inclines to the opinion that it is governed by the verb 'give'. As to the rest of the clause, he says it may be literally translated--' According in my will written having been done (or doing) at that time, the remainder of my whole property I in heritance give.' The words 'at that time' must refer to the epoch ascertained by the preceding words 'according in my will having been done or doing.' As to which Mr. Flynn admits that, grammatically, they may referred either to the adoption of the boy, or to the providing forth as directed by the will.
19. Now it is to be remarked that in two other passages in the will where the testator is appointing an heir in certain events, as at the close of Clause 14 and later on in Clause 15 when he is appointing Dwarkadas his heir, he uses the same expression, 'my property left at the time,' in which oases there can be no doubt that the time referred to is the time at which the gift takes effect. Again, if those words are introduced only to amplify the term 'residue', (which must be the case if the devise to Sundardas took effect at once on the death of the testator) as being what remained after the several bequests and legacies have been satisfied, the testator might have been expected to use the same detailed form of expression on the occasion when speaking of the 'residue' of his property, or at least in the earlier passage in the will when that term is used, as in Clause 14, where he is appointing his natural son as heir, or disposing of the residue in the events mentioned at the conclusion of that clause. Further, the introduction of these words, in the sense contended for on behalf of the infant, between the verb and its object, it is plain from Mr. Flynn's evidence, is awkward and unusual; whilst, on the other hand, if interpreted as referring to the adoption immediately before directed to be carried into effect, their introduction in their actual place is easy and natural, and accounts for the word 'teni' being removed so far from the verb which, as Mr. Flynn thinks, governs it.
20. These considerations appear to me to point to the conclusion that, whether the word 'teni' is to be taken in connection with the words following or as the object of the verb give, the words under discussion refer to the carrying out the adoption, and not the providing for the legacies and charitable bequests mentioned in the will.
21. Lastly, an examination of the original shows there is no stop of any kind in Clause 15 until after the words 'he is to be made my adopted son.' There is then a full stop, which I am told by the interpreter has come into use for the purpose of showing that the sentence is concluded.
22. In construing English wills it has not been the practice to pay regard to the punctuation or parenthesis, because, as said in Sandford v. Raikes, 1 Mer. 651 it would make the construction depend on the grammatical skill of the writer. However in Compton v. Bloxam 2 Coll., 201 Vice-Chancellor Knight Bruce looked at the original, and relied on the circumstance that the words 'my monies' began an entirely new sentence. The circumstance that there is no such thing as punctuation, properly so called, in native Writings, but merely a practice--by no means general--which has grown up of making a dot to denote the end of a sentence, gives the existence of a dot a special importance, which the Court may, I think, take note of without any such risk as was contemplated by Sir W. Grant in Sandford v. Raikes.
23. The circumstance that the words 'him according to my will having been done' come immediately after the sentence thus concluded, points strongly to the conclusion that by 'him' at any rate was intended the boy who answered to the complete description of being the natural son of Dwarkadas and also the adopted son of the testator.
24. Leaving the passage which has been hitherto under consideration we find the following words: 'This lad is to perpetuate my name as if he were the son of my loins.' Next, in the event of the lad dying before coming of age, he directs that such other son of Dwarkadas as may be living be adopted without employing any words of gift, and it is only in case there be no other SON that he appoints Dwarkadas, who would otherwise have been his heir, at least on the death of his wife, to be his heir. Thus showing that the permanent motive in the testator's mind was the perpetuation of his name and family by the Hindu ceremony of adoption.
25. It was said, indeed, that there was a gift by implication to the other sons of Dwarkadas, whether adopted or not, by force of the words 'if by the Will of Providence it should happen that there be no other son of Dwarkadas, then I appoint my nephew Dwarkadas Vasanji as the heir to my property.' But the testator is here only providing for an event which would render his previous direction ineffectual for want of an object, and his words cannot be reasonably read as implying that such other son should take independently of adoption. This would be to impute entirely inconsistent intentions to the testator at one and the same time.
26. Lastly, the directions in Clause 23 as to the 'power' to be obtained from the Court show that the natural status of the sons were, in the testator's mind, entirely, merged in the new status by adoption, as directed in his will, and that he did not contemplate them as taking this property in any other character.
27. It was said, however, that the will shows an anxious desire, on the part of the testator, to appoint an heir in every event that was likely to occur, and which, it was urged, renders it improbable that he should have intended adoption to be a condition of heirship. It is doubtless true that the will provides for nearly every possible event, but the nature of those provisions leaves no doubt that the paramount object he had in view was that ho might always be in the favourable position of one having a son to perpetuate his name. After providing for the event of his having a son by his wife before he died, he contemplates the event of that son dying in infancy, and there being a daughter by his wife who may have married and have a son. As that son would, by the Mitakshara (see West and Buhler on Inheritance, p. 115, and the cases cited), be, in respect of obsequies, regarded as a son's son, and capable of conferring equal benefits, he gives his property to his daughter, who would in that event be his next heir (supposing his wife excluded). At the same time he provides that, if she should die before her son arrives at sixteen, that the son should be adopted into his own family, and thus continue his name. Lastly, he provides for his having no offspring by his wife, in which case the persons whom he selects would not, unless adopted, be capable of conferring on him the benefits of a son, or perpetuating his name, and he consequently directs them to be adopted.
28. The whole scope of the will, in my opinion, indicates that the object the testator had in view was to ensure to himself all the benefits which a son (in the largest sense in which that term is employed by Hindu writers) is supposed to confer on his father.
29. And, moreover, this view of the testator's intention derives corroboration from the circumstances under which the will was made. The will apparently assumes that Dwarkadas is ready to give his son in adoption; and it appears, from the evidence of Mathuradas Lowji, that the testator had been in communication with Dwarkadas with the view to his giving his son in adoption, and that the latter had ultimately agreed to do so.
30. Upon the whole of the will I must decide that the infant sons of Dwarkadas 'Vasanji take nothing under the will, unless adopted.
31. As to the 34th issue, I expressed an opinion at the hearing, which I have since seen no reason to change, viz., that Shtaiavahoo is under no obligation to take the infant Sundardas in adoption on the conditions upon which Dwarkadas is alone ready to give him in adoption.
32. Assuming that the direction by the testator to his wife to adopt Sundardas makes her a trustee for the exercise of the power to adopt, and that the case falls within the principle laid down by Lord Eldon in Brown v. Higgs Ves. 708 5 Ves. 495, and 8 Ves. 561, namely, that the Court will not allow the interest of those, for whose benefit she is called upon to execute the power, to suffer by the negligence or conduct of the donee of the power, I am unable to find anything in the circumstances of this case which would justify the interference of the Court, assuming that it has the power to do so. It is admitted that the father of the child is unwilling to give him in adoption, except upon conditions of a most stringent character, which would virtually deprive Shamavahoo of all control over the bringing up and education of the child. The conditions are set out in the petition of Mathuradas Lowji, the next friend of the infant, and are to the following effect:
i. The moral and religious education of Sundardas shall consist of instructions according to the morality and religious principles contained in the Vedas, being the original religion of the Hindus, and according to no others; and he shall be carefully excluded from the Vallabhacharya sect, and from all knowledge of their doctrines.
'ii. The secular education of Sundardas shall consist of the best English education, until he shall have taken the highest degree in the University of Bombay.
'iii. What is commonly known in high schools as the second language should be the Sanskrit language, and should be taught to Sundardas, in order to enable him to understand the pure and original Hindu religion which is taught in the writings of that language.
'iv. The education of Sundardas should be entrusted to a teacher, being a Gujarati Hindu thoroughly qualified in English and Sanskrit, and, if possible, one who shall have taken a degree in the University of Bombay; and Sundardas shall at all times be under the guidance of such teacher, and the teacher shall be constantly with him.
'v. Sundardas is to marry a woman of his own choice after having attained the age of eighteen years-
'vi. Sundardas is to be permitted to live with the plaintiff and his natural father from time to time according to his wishes.
'vii. A fit and proper guardian should be appointed, who should be a Hindu gentleman.
33. The first four of these conditions lay down a scheme of education. The fifth condition regulates the choice of his wife, and in a manner which implies that Shamavahoo is to have no voice in it; it further fixes the age at which he is to marry far beyond the usual custom of Hindus. The sixth condition leaves it virtually to the boy to decide with whom he will live; and it would be affectation to shut one's eyes to the almost inevitable result of such a condition, viz that the child, (especially in view of the angry relations subsisting between the father of the child and the widow), would elect to live with his natural parents. Lastly, the seventh condition provides that a guardian be appointed to the child.
34. These conditions, excellent as they may be abstractedly speaking, leave no doubt that the object of the father is, practically, if not in terms, to deprive Shamavahoo of the rights which as the mother of the adopted child she would by Hindu law be otherwise entitled to.
35. The Hindu law books abound in texts to show that by adoption the child is transferred from the family of his natural parents into that of the adopting parents, and that the relation of mother and son is established between the adopting mother and the adopted son. If that be so, how can it be said that Shamavahoo is violating the trust reposed in her when she refuses to accept Sundardas upon such conditions as would curtail and injuriously affect her rights as his adopting mother?
36. The will imposes no such conditions on her, but contemplates adoption in its simple and ordinary form. 'My wife is to take that son in adoption'-to which are added expressions showing his complete confidence in Shamavahoo. He says, speaking of the boy, he is to pay as much respect to his wife Shamavahoo as if she were his own mother, and agreeably to her directions he is to act righteously, and she is to have the lad married as if he were her own son. Again, when speaking of the adoption of the other son of Dwarkadas, he says: 'he is to obey my wife Shamavahoo.'
37. If Dwarkadas has not the same confidence in Shamavahoo that her husband appears to have had, or if her conduct since her husband's death as an alleged devotee of the Maharajas be not such as to meet with his approval, he may perhaps be morally justified in not fulfilling his promise to the testator to give his son in adoption; but as long as she is willing to act according to her husband's directions, what ground is there for this Court, (assuming that it had such a power), to interfere?
38. It is said in Dwarkadas' petition and correspondence, annexed, that Shamaahoo is a worshipper of the Maharajas; and that, if the testator were now alive, he would himself wish that the child should be adopted subject to the above conditions; and that this Court ought, therefore, to compel Shamavahoo to adopt on such terms. It would, however, lead to moat inconvenient consequences if this Court were to allow itself to be drawn into questions of religious difference between the various Hindu sects, except where it was absolutely necessary for the determination of legal rights. In the present case the testator has not only reposed complete confidence in his wife, but has recognized the worship of Maharajas, as at least not reprehensible, by making a bequest in support of such worship, The petition contains no specific charges of improper conduct on the part of the widow, but is confined to general imputations on the sect. If it be true, as Dwarkadas and Mathuradas Lowji suggest, that the conduct of the worshippers of the Mahardjas is such as to make a woman an improper guardian of youth, it will be time to Consider that when Shamdvahoo fills the character of mother to the adopted Sundardas. If at that time the conduct of Shamavahoo should be such as to ruler her an improper person to have the charge of bringing up of the child, I apprehend the Court would act upon the general principles by which it is guided in removing children from the control of their natural parents.
39. I find issues 33 and 34 in the negative, and record none On the 35th.
40. Costs of hearing on further directions of all parties to come out of the estate, to be taxed between attorney and client.
41. Costs of, and incidental to, the two petitions to be borne by the petitioners themselves.