1. But issue No. 1 as to whether the plaintiffs can sue is yet to be tried. The Courts below have refrained from finding on it.
2. The suit giving rise to tins appeal was instituted by the present appellants for a declaration that the adoption of the 1st defendant Babaji by the 2nd defendant, the widow of one Kalagauda, was null and void. The appellants claimed as nephews to be the reversionary heirs of Kalagauda Kalagauda died on the 13th March 1885, having made a will dated the 9th of March of that year
3. The only question between the parties is whether the lower Courts are right in holding that under the terms of that will there was no implied prohibition barring the widow from adopting the first defendant, who is the son of one of the testator s daughters. Both the Courts below appear to admit that there is to be collected from the will an implied prohibition of one sort or another, but they are of opinion that in the special circumstances disclosed in this case the effect of the adoption is to carry out either the provisions of the will which Kalagauda did make or the provisions of the will which he would have made had all the present facts been before him and upon that footing they have allowed the adoption to stand. The will in question is Ex. 59, and in it the testator recites that he has no male issue, but that ha has a wife and two daughters living By the first clause he provides that the ownership of the lands, most of which were vatan 'should, after me, go to the said daughters Tani and Bhima the manner written below and remain with them in perpetuity. In the second clause he gives his wife power to household and to make proper arrangements in litigation that may ensue, but he says: 'My wife has authority to make over the property of our house hold to any body except to my daughters.' The seventh clause is, follows: 'My daughters have authority to make over the property right of ownership to or to relinquish the same in favour each other. Or else should any occasion arise one may go to the other only, but not to any body else have I taken any body in adoption.'
4. In the year following the testator's decease, Bombay Act V of 1886 (Vita, Act) came into operate 'and the effect Section 2 of that Act was to postpone female members of he to male members an the matter of the succession. This being so, the District Court is of opinion that the provisions which by his will the testator intended to make were defeated by the subsequent legislation in 1886, and that the widow's adoption of the first defendant would be a means of checking this defeat of the testator's intentions, and giving effect to them so far as possible in the circumstances which had arisen. It is mainly upon this view of the case that the learned Judge has held that the adoption ought to be supported.
5. We think, in the first place, that this extraneous ground for invoking a specially favourable view of the adoption fails, inasmuch as whatever rights accrued to the daughters under this will vested in them on the testator's death on the 13th March 1885, whereas Bombay Act V of 1886, which was not enacted that the subsequent year, is not restrospective in its operation see Rahimkhan v. Fatu Bibi ILR (1895) 21 Bom 118. But even if that ground could he successfully taken, we are not the less of opinion that the adoption cannot be supported. It seems to us that the only means of supporting it would be, to all intents and purposes, to make a new will/or the testator, and to say that that is a good will, because in our judgment or our conjecture that is the sort of will which the testator might be expected to make, if the facts now present to our minds had been present to his mind on the 9th of March 1885 when the will was made. That of course is clearly not the way in which a will can be interpreted. As it stands the will makes a complete disposition of all the property in favour of the -daughters. There is no property left upon which an adoption can take effect. The sentence in the seventh clause of the will, which we have set out, to the effect that the testator has not taken any body in adoption, shows that it was present to his mind that any adoption made would pro tanto have the effect of running counter to the provisions of his will. Not only was there a complete bequest of the whole estate to the daughters, but the widow was in terms prohibited from disposing of the property to anyone except the daughters. It is plain, therefore, that the adoption now in question cannot be upheld without giving the go by to the testator's expressed wishes. For this reason the adoption, in our opinion, is invalid.
6. Reliance was placed by the respondents on the decision of the Privy Council in Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397 upon which the learned Judge of the first Court mainly grounded his own decision. We think, however, that that case is no real warrant for the respondents' present position. That was a case where, two days before his death, a Zamindar had made a petition or arzi to the Collector explaining his desire that his estate should go to his two daughters, who were then infants, and that his natural brother should manage the affairs of the Zamindari until those iufants should attain full age. After the death of the Zamindar the two daughters died and his widow then made an adoption. That adoption was impeached before their Lordships of the Privy Council on the ground that an implied prohibition against it should be collected from the terms of the arzi. This contention was overruled by their Lordships on the grounds which are (explained at p. 445 of the Report.
7. But there the two daughters in whose favour the arzi had made provision had died before the widow had adopted, so that when she had adopted, the most that could be said against her was that she adopted without formal approval, not that she had adopted so as to invade the rights of any persons then, living. That indeed, as we understand it, is the main ground upon which their Lordships' judgment proceeded, for they say that ' the widow had not claimed the power to adopt except on the happening of the contingency for which her husband omitted to provide'. Here the adoption is made during the life-time of the daughters in whose favour the testator made his will; the adoption runs counter to the testator's prohibition, though the state of the family had not altered between the testator death and the prohibition ; and the only contingency, if so it could be called, which the testator can be accused of having omitted to provide for, is the contingency of a piece of legislation which neither he nor any other private individual could have foreseen. That, therefore, it seems to us, is a totally different circumstance from the one which existed and which influenced the judgment in the case before the Privy Council.
8. For these reasons we are unable to adopt the view which found favour in the Courts below. We must reverse the decree under appeal, and, since only one issue has been decided in the Courts below, remand the suit for trial on its merits on the other issues.
9. The appellants must have their costs here and in the Courts below.