1. I do not think that any advantage would be gained by delaying my judgment in this case, and I will, therefore, give my decision at once. I will take the issues in their order.
2. The first I have already decided, and have held that the Advocate General is not a necessary party to this suit. The eighth issue may be taken in connection with the first. All parties are willing that the charities should be carried out; and as there is nothing which is shown to be invalid in the charitable bequests in the will, I will find the eighth issue in the affirmative. The intention of the testator is clear, and as all parties are desirous that his intention should be effectuated, even though there may perhaps be some doubt as to its perfect legality, I will not endeavour to discover it.
3. The third issue also I decide in the affirmative, no evidence having been offered with regard to it.
4. Next comes the fourth issue. I decide this issue in accordance with the contention put forward on behalf of the plaintiffs and the first defendant; and I hold that the house in Mody Bazar is comprised in the trust created by Clause 40 of the will, and ought to be included in it, but subject to the provisions contained in Clauses 21 and 30.
5. Passing over the fifth, I deal with the sixth issue. All these sums are plainly to be paid out of the income of the trust premises, and that income cannot be ascertained at present This issue must, therefore, be decided in the negative.
6. As to the seventh issue, I confess I should wish to put a different construction on the will than that which I find myself compelled to adopt. (His Lordship read Clause 27 of the will.) It is true that a gift of the rents of a property is generally equivalent to a gift of the property itself; but it is clear that the testator does not mean or intend that Kessarbai shall take the property absolutely. He gives her the rent of the house, and after her death he gives 'the ownership' to her children. Obviously, therefore, if she had children she was only to take a life; estate. But at the testator's death Kessarbai had no children, and, therefore, on the authority of the Tagore Case, L.R., Ind. App. Sup. Vol., 47 the gift to them is void. That circumstance, however, cannot be taken to enlarge the interest given to her by the will, and, therefore, I must find upon this issue that under Clause 27 she is entitled only to a life estate.
7. The remaining issues to be dealt with, viz., the fifth, ninth, and tenth, all depend on the construction to be put on Clauses 28, 29,. 30, and 46 of the will. By Clause 28 the testator directs his daughter-in-law, (the first defendant Ladkavahu) to adopt a son (His Lordship read Clause 28.) Now, the first question which arises is, whether that direction is a direction to her to adopt a son to himself (the testator), or a direction to her to adopt a son to herself and her deceased husband Liladhar which was the only adoption which she Was competent by Hindu law to perform. By that law any adoption made by a widow enures to herself and her husband. Why should I hold the testator to have directed Ladkavahu to do what she could not do? The fact that by Clause 29 the adopted son is directed to take the name of Karamsi Kessowji has been relied on as showing that the adoption was intended to be to the testator. I do not think, however, that any weight can be attached to that circumstance. That direction would have been unnecessary if the adoption was to the testator, but I do not think it in any way assists us in construing Clause 28. The provisions of Clause 46, however, tend to show that what Ladkavahu was directed to do was what could be legally done, viz., to adopt a son to her husband and herself, It was argued that the testator did not know the law, and in his ignorance contemplated an adoption to himself. But the Privy Council has laid down that in construing a Hindu will we are to keep in mind what the Hindu law is, and what it permits, and I must, therefore) hold that the direction to Ladkavahu was a direction to do what by law she was alone competent to do, viz., to adopt a son to her husband and herself; and I find nothing in the will to compel me to hold otherwise.
8. The next question to be considered is, whether Karamsi is under the will entitled to the property, although he has not been adopted. I am unable to distinguish this case from the case of Shamavahoo Infra, p. 202. I consider I should be bound by that authority even if I did not agree with it; and, if the decision be erroneous, I must leave the matter to the Appeal Court to be set right. But I do not disagree with that case; and I think, upon the facts, I should have come to the same conclusion.
9. In construing the will now before me I think Clause 46 strongly supports the contention that inheritance was to be contingent on adoption. The intention of the testator was that the adopted son and no other, was to succeed to his property. He could not have intended that a person not adopted should inherit all his wealth, and leave penniless the son to be adopted for the purpose of perpetuating his family and name. If the will admits of the construction which will carry out what was clearly the intention of the testator, that construction ought to be adopted. In the view of the testator, the direction as to adoption was the most important portion of his will, and I think that the adoption of a boy was one of 'the things mentioned in my will' which by Clause 28 were to be done before ascertaining the residue which was then to be given 'to this lad as his inheritance.' The words of Clause 46 support that construction, for by this clause it is provided that the property is in certain events to go to a subsequently adopted son, But that would be impossible if Karamsi took the property independently of his adoption and the adopted heir would be left wholly unprovided for. To my mind, that is almost conclusive as to the meaning of Clause 28. In these clauses the testator, in effect) says, first 'adopt a son ', then 'I give to the lad so adopted the residue of my property, and I appoint him my heir.' By the word 'heir' in this country is usually meant the person who can discharge the functions of an heir according to Hindu ideas. In the subsequent clauses of the will the' boy so adopted is treated as the testator's heir.
10. My decision makes adoption a condition precedent to inheritance. The English decisions show, no doubt, that there is in England a strong desire to avoid, whenever it is possible to do so, any construction which would involve a condition precedent in such a case as the present. Here, however, we have to deal with Hindu law, and we must keep the provisions of that law in mind in endeavouring to carry out the intentions of a testator.
11. On the fifth issue, therefore, I find that Karamsi is entitled to the property on being adopted by Ladkavahu.
12. I admit that my decision on this point will leave the inheritance in suspense for a time, but that is always the caste where a will directs an adoption to be made.
13. As to the question raised by the ninth issue, probably, if adopted, Karamsi would take an absolute estate, but that question had better be left open, for the present.
14. My decision on the fifth issue renders it unnecessary to record any finding on the tenth.
15. The decree will be a, declaratory decree setting out the issues, and the findings thereon, and declaring accordingly.
16. All parties to have their costs out of the estate, as between solicitor and client.
17. The following were the findings on the issues:
3. That the defendant Ladkavahu is absolutely entitled to the copper, brass, and other vessels and household furniture left by the testator, and referred to in Clause 20 of his will.
4. That the house at Mody Bazar, mentioned in Clause 21 of the said will, when rebuilt and completed as provided in the said clause, is to be included in the trust provided for in Clause 40 of the said will; and that Ladkavahu takes a life interest in the said house, but subject to the specific appropriation of it, present and contingent, contained in Clauses 21 and 30; and that she is entitled to use such portions of it as are not so appropriated in such manner as she thinks fit.
5. That by Clause 28 as read with Clauses 29, 30, and 46 of the said will, Ladkavahu is directed to adopt Karamsi Madhowji as her son, and that upon such adoption the said Karamsi will be entitled to the residue bequeathed to him by Clause 28 of the said will to be made over to him upon his attaining the age of twenty-one years, in pursuance of the directions contained in Clause 31 of the will. No finding as to the quantum of the estate taken by the said Karamsi in the said residue.
6. In the negative, and for the plaintiffs.
7. That Kessarbai takes an interest for life in the house given to her by Clause 27 of the said will,
8. That the religious and charitable bequests contained in the said will are valid, and should be carried into effect.
9. That until his adoption the defendant Karamsi Madhowji is not entitled to the whole or any part of the residue or estate of the testator comprised in the said will.
10. No finding, as the defendant Karamsi Madhowji has not yet been adopted,
11. Declaratory decree setting out the issues and the findings thereon, and declaring the rights of the parties in accordance with such findings.
18. All parties appearing to have their costs out of the estate taxed as between attorney and client. The infant's costs to be taxed separately from those of the defendant Ladkavahu in her personal capacity.