1. In this litigation the parties concerned are professional prostitutes of the class known as Naikins, and their relation is shown by the genealogy recorded in the judgment of the lower appellate Court. The plaintiff Radha sued to obtain by partition her half share in the properties belonging to the women Tana and Sundra. There is no dispute as to the plaintiff's right to a half share in Tana's property. The question is whether the plaintiff is entitled to a half share in Sundra's property. The second defendant Hira resists such a claim alleging that she herself was validly adopted as a daughter of Sundra, and is thus entitled to inherit Sundra's property; and in the alternative she relies upon the will of Sundra made in her favour.
2. The trial Court found substantially in the second defendant's favour. But that decree was materially modified on appeal by the learned First Class Subordinate Judge, and from his decree the present appeal is brought by the second defendant.
3. The first question raised in argument by Mr. Jayakar for the appellant was that the suit is time-barred, inasmuch as knowledge of Hira's adoption ought to be debited to the plaintiff as early as Sundra's will of the 22nd of November 1898. There is, however, no evidence upon the record from which the plaintiff can be affected with notice of the adoption prior to the 26th of February 1904, when Ex. 17, the plaintiff's own deposition, shows that the fact of the adoption had been brought to her attention. Reckoning from the 26th February 1904 the suit is well within time. The objection, therefore, as to limitation fails.
4. Then an argument was addressed to us upon the question of the legality of Sundra's adoption. Upon the record as it stands, and the facts as they are found, we have no doubt that the case falls directly within the authority of Mr. Justice (sic)ision in Mathura Naikin v. Esu Naikin ILR (1880) 4 Bom. 545, which (sic) to with approval by the Privy Council in Ghasiti v. Umrao Jan It is true that the learned Judges of the Madras High Court in Venku v. Mahalinga ILR (1888) Mad. 398 have upon this point taken a different view from that which commended itself to Mr. Justice West ; but for ourselves we accept West J.'s judgment and desire to say nothing which could restrict or weaken its authority. On the facts as they are found that decision governs the case, and we see no reason whatever why we should furnish the appellant with further opportunities of eking out her case by calling evidence on the chance of proving other facts with a view to lend a different colour to the defence. The second point, therefore, also fails.
5. The third point was that even if Hira was debarred from inheriting as an adopted daughter by reason of the invalidity of the adoption, yet she was entitled to take as persona designata under Sundra's will. We are of opinion that this argument must prevail. The question here, as in all such cases, is whether the words expressing the relation of an adopted daughter are merely descriptive of the particular individual selected for the testator's bounty, or whether those words are to be read as the cause or condition of that bounty. Several cases have been alluded to in argument with a view of affording us assistance in our present decision. It seems to us, however, that in a matter of this kind each case must really be decided upon its own facts, and that we should gain no direct assistance by looking outside the particular expressions of the will now before us. That will undoubtedly starts with the declaration that as the testatrix has no issue of her own she has adopted Hira, the elder daughter of the Naikin Mana. It must be remembered, however, that this Hira was nearly [ related to the testatrix. In the subsequent passages in the will sometimes the adjectival phrase ' adopted daughter' occurs and some times it does not occur in relation to the name Hira. And it appears to us, upon the best consideration we can give to the will as a whole, that in the testatrix's mind the validity of the adoption was not a condition precedent to Hira's deriving the benefit accorded to her under the will. We do not think that Hira was to take the property as being the adopted daughter, but that Hira was the adopted daughter and was to take the property because she was the special object of Sundra's bounty. In our opinion, therefore, the argument upon this point must Preva
6. It remains only to notice what will be the effect decision. For the appellant it is contended that the wisdom the property devised by the will should go to the appellant, whereas in the Courts below the will has been treated as being a Mahomedan will, so that by its provisions Hira could not take more than one-third of the property. We think that this latter view is the view which must now be accepted. It is true that there is no specific evidence to show whether the parties are to be reckoned as Mahomedans or Hindus. What we have, however, is the fact that from the beginning of this litigation to its appearance in this Court in second appeal, it has been fought out consistently on the footing that the parties in this respect were to be governed by Mahomedan law. Since that has been the assumption which throughout was accepted by both parties, we think, it is too late now for the second defendant in second appeal to attempt to disturb it.
7. The decree of the lower appellate Court must, therefore, be varied by the insertion of a provision directing that the appellant is entitled to receive one-third of the property devised by the will of Sundra ; and the appellant must have her costs of this appeal in proportion to her success.
8. Costs of Mr. Bakhale's client, respondent No. 2, to come out of the estate.