1. The plaintiff in this case sued to obtain a declaration that lie was entitled to the suit property according to the will of deceased Bhimappa and to recover possession of the property. Bhimappa died on May 6, 1912, leaving behind him his widow defendant No. 1, his daughter defendant No. 2, his daughter-in-law defendant No. 4, and defendant No. 3 the widow of a pre-deceased undivided member of the family. Defendant No. 1 adopted one Venkappa, who brought suit No. 45 of 1917 against the present plaintiff and defendants Nos. 1 to 6, in which he claimed to be the adopted son of Bhimappa. The suit of Venkappa was defeated by defendant No. 1 on the ground that there was a will made by Bhimappa in favour of the present plaintiff. The will is held proved in this case. The question involved in this appeal is as to the construction of the will. The learned Subordinate Judge held that the gift was made to the present plaintiff as persona designata without making the gift conditional on his adoption by Bhimava.
2. If the intention was to benefit the present plaintiff irrespective of the fact of adoption and the reference to adoption was made merely as a description, the gift would be valid according to the principle laid down in Section 76 of the Indian Succession Act. If, on the other hand, the adoption was intended to be a condition precedent to receiving the bounty of the deceased testator, the gift would not take effect if the adoption was in fact not made.
3. Several cases have been cited before us. As stated by their Lordships of the Privy Council in Karamsi Madhowji v. Karsandas Natha I.L.R (1898) Bom. 271, p.c. it can be forcibly urged on the one hand that the construction adverse to the donee leads to an intestacy, which it must be presumed that one who is making his will does not intend, and on the other hand that with the failure of adoption the whole structure of the will fails, and there ensues an intestacy, not as desired or contemplated by the testator, but because he took for granted the existence of a condition which has not come to pass. According to the view of the Privy Council in Subbarayer v. Subbammal the construction of one adoption deed would not be of any use with regard to the construction of another. We have to gather the intention of the testator from the document before us. According to the ruling in Fanindra Deb Raikat v. Rajeswar Dass the distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances. We have, therefore, to consider whether the testator intended by virtue of this document that the plaintiff should get the benefit under the will only if he was adopted, or whether he was only described as an adopted son and did not make the adoption as a condition precedent to receiving the bounty under the will. In the adoption deed the testator says: 'If I do not survive (then in that case) on the basis (strength) of this will of mine the said Krishtagowda alone is the owner of all my movable and immovable property.' He does not in that sentence describes Krishtagowda as his adopted son, but he is referred to as the said 'Krishtagowda' mentioned previously as 'the younger son of my dear relation Ramangowda bin Basangowda Kulkarni.' I may refer in this connection to the remarks of the Privy Council in Bireswar Mookerji v. Ardha Chunder Roy. . The will does not lay down adoption as a condition precedent to the plaintiff's taking the benefit under the will. In Bai Dhondubai v. Laxmanrao I.L.R (1922) Bom. 65: 24 Bom. L.R. 794 the learned Chief Justice said (p. 69) :
It seems to us that the Court should not strain to adopt a construction, which would defeat the intention of the tetcitor, unless it was absolutely certain from the words of the will that the testator intended to make the gift... conditional on the adoption being valid.
4. We do not find anything in the words in the will before us which would necessarily indicate that the testator intended to make the gift to the plaintiff conditional on the adoption being made by the testator or by his widow.
5. It, however, appears that the widow failed to carry out the directions of her deceased husband though it was within her power to adopt a son to her deceased husband. In fact she adopted Venkappa and then defeated Venkappa by setting up the present will before the Court. In her evidence in that case she stated : 'My husband told mo that he had given me 12 Kurgis of land and 4 to my daughter defendant No. 2 and that he had left the other property to defendant No. 7 by a will,' Defendant No. 7 is the present plaintiff. Reading the will as a whole it appears that the intention of the testator was that the gift should be in no way conditional on plaintiff's adoption though the testator intended that the plaintiff should be adopted and also get the property. The widow failed to give effect to the directions in the will to adopt and it is now out of her power to adopt plaintiff as the plaintiff has now become an orphan. We do not think that we should allow the widow, defendant No. 1 in this case, to have the benefit of her omission to do her duty in the matter of adoption and defeat the intention of the testator expressed in the will that she should adopt the plaintiff. We, therefore, agree with the view of the learned Subordinate Judge as to the construction of the will, and having regard to the other circumstances in the case we think that the testator intended the gift of the property to be made to the plaintiff as persona designata, without making the gift conditional on his adoption by Bhimava. It appears from the will that 50 acres of land were given to the widow, and 22 acres of land were given to the daughter, and the rest of the property was given to the plaintiff and he was to get the property on the basis of the will as stated in the document before us. We think, therefore, that the view of the lower Court is correct and the appeal should be dismissed with costs.
6. I agree.
7. The learned Subordinate Judge, has considered the provisions of the will in detail and at considerable length and unless there are very strong grounds for differing from the view which he has expressed, which there are not in the present case, I do not see any reason for arriving at a conclusion contrary to that at which he has arrived. He has referred to a number of cases in which the Courts have construed various wills, but, as pointed out by the Privy Council in Subbarayer v. Subbammal the language of one instrument does not afford much assistance in the construction of another. It is not possible to find two wills in identically similar language. But apart from this the terms of the present will seem, in my opinion, to show that the intention of the testator was to make the plaintiff his heir by reason of the will and not by reason of the adoption. The clauses in the will seem to contemplate that though no adoption should take place, the said Krishtagowda should be the heir of the movable and immovable estate in accordance with the will. The will has made provision for the wife and daughter of the testator and, as has been pointed out, the widow not having carried out the instructions of the testator to make an adoption cannot be allowed to take advantage of her own default. For these reasons concur in holding that the decree of the lower Court should be upheld and the appeal dismissed with costs.