Binod Mitter, J.
1. This is an appeal from the decree of the High Court of Judicature at Patna, dated December 16, 1927, which affirmed a decree of the Subordinate Judge at Cuttack, dated August 6, 1923, and dismissed the plaintiffs' suit with costs.
2. The following is the genealogical table of the family of Ram Prosad Bose, and the parties to the litigation claim to be his heirs.
Unamoyee = Golak Prasad (died October 26, 1873) = Alhadini Dasi (1st wife) | | (2nd wife).Rama Prosad Bose = Alhadini alias Gangomont |(died Feb. 16, 1869) (died 7th Sept., 1920) |--------------------------------------------------| | | |Gobinda Prosad Sananda Prosad Binod Prosad Sonaton Prosad (deed. plff. No. 1). (plff. No. 2.). (plff. No. 3). (deceased). |Rajenda (plff. No. 1).
3. Ram Prosad Bose executed a will and also an Anumatipatra in favour of his wife Alhadini Dasi on February 16, 1869.
4. Alhadini Dasi, the widow, adopted one Krishna Prosad in the year 1885, and he died in 190D leaving the respondent his only heir in possession of the properties claimed by the appellants. Alhadini died on September 7, 1920, and the present suit was instituted by the appellants against the respondent on April 25, 1921, praying for a declaration that the adoption of Krishna Prosad was invalid, and for the recovery of the properties in possession of the respondent and other incidental reliefs.
5. There is no dispute now about the valid execution of the will or the Anumatipatra, nor is there any dispute that Krishna Prosad was in fact adopted, and that all necessary and proper ceremonies were performed at his adoption.
6. Ram Prosad belonged to a Kayastha family, and was governed by the Bengal School of Hindu law, and the widow, therefore, could only adopt in terms of the Anumatipatra, provided the same remained effective at the date of the adoption.
7. The following is the official translation of the Anumatipatra:-
Anumatipatra executed by Ram Prosad Bose in favour of Alhadini Dasi.
'This Anumatipatra is executed by Ram Prosad Boae of Bhogmadhab, Ph. Jajpur, District Cuttack; at present of Bichargunj, Ph. Sunhat, District Bala-sore, to the effect following :-That as I was taken ill with purging and vomitting yesterday, I found that it was not likely that I should live. In the circumstances I find that it is necessary that I should have an adopted son or a Snehaputra (to inherit) the Zamindaries, etc., the movable and immovable properties, which I have in Balaaore and Cuttack. Hence in sound mind and out of my own free will I execute this Anumatipatra in favour of my wife Alhadini, alias Gangamani Dasi, to the effect that she will take an adopted SOD, that is, she will adopt my father's youngest son. At present he is called by the name of Chema. She will take him in adoption and deliver him possession of the aforesaid property on my death. If there be any obstacle to take him in adoption according to the Shastras, then he will be made a Snehaputra or she may adopt anyone else whom she wants, with the permission of my father, and deliver him possession as written above. To the above effect I execute this Anumatipatra that it may be of use when necessary. D/16-2-1869 corresponding to 7th Falgun 1276.
8. The learned Subordinate Judge, in his judgment, translated the vernacular word 'matanusura' as 'according to the opinion or advice,' but the official translation of the aforesaid word is 'with the permission.'
9. Mr. Justice Ross, in his judgment accepted the official translation in its entirety, and the other learned Judge substantially did the same. The practice of their Lordships' Board is to accept the official translation as correct (Sasiman Chowdhurain v. Shib Narayan Chowdhury (1921) L.R. 49 IndAp 215 : 24 Bom. L.R. 576, and their Lordships must decide this appeal on the official translation.
10. Both the Courts below have held that there was an obstacle to take Chema, the testator's stepbrother, in adoption, and their Lordships see no reason to differ from that view.
11. The substantial question before their Lordships for decision is whether on the true construction of the Anumatipatra, on the death of Golak Prosad, the power to adopt given to the widow by Ram Prosad came to an end.
12. In England, as also in India, even where document is executed in vernacular, the fundamental rule of construction is the same. The duty of the Court is to ascertain the intention from the words used in the document. The Court is entitled and bound to bear in mind surrounding circumstances, but the Court does that only to ascertain the real intention of the executant from the words used by him. The surroundings of an Indian, his manners, his outlook proceeding from different religion and social customs, are often different from those of an Englishman. Ordinarily documents executed by an Indian in his own language, particularly without any professional aid, are often expressed in loose and inaccurate language. All these considerations have to be borne in mind, and sometimes by reason of these aforesaid circumstances a more extended or restricted meaning may have to be given to particular words than their exact literal meaning permits, provided always that the context justifies it. In short, the Court is entitled to 'put itself into the testator's armchair'. Once the construction is settled, the Court is bound to carry out the intention as expressed and no other. The rules of construction were clearly laid down by the Board in Venkata Narasimha Appa Row v. Parthasarathy Appa Row .
13. It is true that the paramount intention that often actuates a husband to empower his wife to adopt a son to him is religious, for, according to Hindu religion, the adopted son is able to confer on him at stated intervals spiritual benefits in a much higher degree than his brothers or any other near agnatic relations. On the other hand, sometimes a husband mainly from secular motives empowers his wife to adopt a son or sons to continue his line of ancestors and to inherit his property and keep up his own name (see Mayne's Hindu Law, sixth edition, p. 134).
14. Generally both motives induce the husband to empower the wife to adopt a son to him, and whether the paramount intention is religious or secular has to be ascertained from the language of the Anumatipatra, bearing in mind the various facts to which their Lordships have referred.
15. It is well established law in England that when a power is given to be executed with the consent of a person, and that person dies before the power is executed, the power comes to an end.
16. Their Lordships see no reason why, subject to what they have said, the ordinary rule as to construction of powers which prevails in England should not be applicable to the construction of an Anumatipatra executed in India. Their Lordships are fortified in their view by the observations of the Board in the case of Amrito Lal Dutt v. Surnomoye Dasi . Their Lordships find from the document that the paramount intention was to have an adopted son to inherit the Zemindaries. Instructions were given that the properties not disposed of by the will should be made over to the adopted son. The Anumatipatra nowhere suggests that the adoption was to secure the spiritual benefit of Ram Prosad.
17. It is important to bear in mind that Ram Prosad could not have been married many years before the Anumatipatra was executed, and his wife was then only thirteen or fourteen years of age. It is unlikely that he could ever have wished that his girl wife should have an unrestricted choice in the selection of his adopted son to the extent of allowing her to bring a stranger to inherit his property.
18. In their Lordships' opinion the words 'with the permission of my father' created a condition precedent to the exercise of the power of adoption certainly during the lifetime of the father, and there is no reason for holding that the words are to have a different effect after the death of Golak. It is well established law in India that authority given to a wife to adopt has to be strictly pursued : Chowdry Pudum Singh v. Koer Oodey Singh (1869) 12 M.I.A. 350; Surendralmhav Roy v. Doorgasundari Dassee .
19. Their Lordships therefore hold that on the death of Golak the power to adopt came to an end.
20. Counsel for the respondent argued that in order to give effect to the true intention of Ram Prosad the words 'if possible' should be added after the words 'with the permission' in the Anumatipatra. Their Lordships are unable to accept this contention, and they are of opinion that the appeal should be allowed, and there should be a decree for ejectment against the respondent with mesne profits from the death of Alhadini to the date when possession is delivered to the appellants. The plaintiffs are also entitled to the declaration that Krishna Prosad was not the adopted son of Ram Prosad.
21. The appellants were unsuccessful in most of the issues raised by them, and in their Lordships' opinion each party should bear his or their costs in the Courts: below, but the appellants should have such costs of this appeal as they are entitled to as appealing in forma pauperis. They will, therefore, humbly advise His Majesty accordingly.