1. On October 7, 1912, one Pandurang made a will, Exhibit 18, during his last illness in which he announced his intention of adopting the defendant-appellant and directed him to redeem the lands of the plaintiff-respondent and his mother Krishnabai, the daughter of Chewubai the sister of the testator. Chewubai, Krishnabai and the plaintiff-respondent had apparently all been living with the testator. The appellant was at the time absent in Benarea but returned soon afterwards. On October' 16, nine days after the will, he was formally adopted by the testator. The testator died a few days later.
2. In 1924 the respondent filed the present suit to compel the appellant to carry out the directions in the will and to redeem the mortgaged property belonging to the plaintiff-respondent. The defendant-appellant resisted the claim on three grounds: firstly, that the will was in respect of ancestral property and the testator had no power to make it; secondly, the directions therein were not mandatory but at the most recommendatory; and, thirdly, these directions were void for uncertainty. Both the lower Courts held in favour of the plaintiff-respondent and decreed the claim, directing that the plaintiff's costs of redemption should be recoverable from the appellant. The defendant appeals.
3. It is argued for the appellant that, according to the latest pro of their Lordships of the Privy Council in Krishna- murthi Ayyar v. Krishnamurthi Ayyar with the single exception of an arrangement regulating the right of an adopting widow as against an adopted son, any limitation on the power the estate of the adopted son is invalid. For the respondent, reliance is placed on Kashibai v. Tatya : AIR1916Bom312 that the adoption and the will together constituted a family arrangement by which the appellant is bound. In regard to the Privy Council case cited above, it is argued that it only lays down the law where the adopted boy is a minor and not where, as here and in the Bombay case, he is a major.
4. No text is available on the point. On the ordinary principles of Hindu law and the nature of a joint coparcener the appellant's interest began from the date of his adoption, namely, on October 16, 1912. The will, though made previously, could only take effect from the death of the teatator and the testator, therefore, was in fact disposing of property in which the appellant had a coparcener's interest and which he could not do even with the eons' consent: Bhikhabhai v. Purshoitam I.L.R(1926) . 50 Bom. 558 The words family arrangement,' on which the decision in Kashibai v. Tatya is founded are not easily capable of legal analysis. At the best it can be treated in one of two ways. It may be said that the adoption was a species of contract and that the performance of the stipulation in the will was a part of this contract or even a condition precedent. It is difficult to reconcile the entire idea of adoption with all its spiritual benefit to the adoptive father and the continuity of the joint family with the notion of a contract, Or again, it may be said that the adopted son cannot be allowed to approbate and reprobate, which in effect reduces itself to a rule of evidence and stopped, again based on his adoption as a contract. The decision itself of the Privy Council in Kriahnamurthi Ayyar v. Kriahnamurthi Ayyar was doubtless in regard to a minor. But their Lordships examined the matter on principle at page 262, and therefore the entire reasoning, against from the question of the consent of the natural father of the minor, applies to the validity of a will such as the present, the only difference being that here the question is not of the consent of the natural father but of the person adopted himself, which does Hot make any essential difference in the principles laid down by their Lordships of the Privy Council or their application to the question of the validity of such a will. A logical consequence of the opposite view would be that there would be no limitation on testamentary powers against an adopted son who is a major and who consents. In the result, therefore, I find it impossible to reconcile the essential notions of a Hindu adoption with the validity of the will such as the present and with the observations of their Lordships of the Privy Council and the reasoning in Kashibai v. Tatya.
5. It is not, therefore, necessary, to consider the last two points. Bat it appears to me that on the second point the lower Courts were right in holding that the directions were mandatory and not merely recommendatory as against the single word contributing' are detailed directions, leaving no doubt as to the testator's wishes.
6. Similarly on the third point, there was no such uncertainty in my opinion as to render these provisions void.
7. Differing as I do from the lower Courts, therefore, on the first point, the appeal must be allowed and the decrees of the lower Courts set aside and the plaintiff's suit dismissed.
8. The respondent must pay the appellant's costs throughout.