1. This is a plaintiff's appeal. The plaintiff is the daughter of Raja Raghunath Singh of Sikri Estate in the district of Jalaun who died on 27th October 1911. The Sikri Estate consists of properties in two taluqas, taluqa Khaksis, comprising eleven villages, details of which are given in Schedule A attached to the plaint, and taluqa Sikri comprising eight villages, details of which are given in Schedule B. It is admitted that it is an impartible estate and goes to a single owner. Raja Raghunath Singh, the last male owner, had got the property by inheritance from his father, Raja Daulat Singh, who had died on 25th January 1896. Raja Raghunath Singh remained the owner of the estate till his death on 27th October 1911. At the time of his death he had no son. He was survived by his third wife, Rani Harbans Kishori, and by his daughter by her, the present plaintiff. The plaintiff was a minor, aged about four or five years, at the time of the Raja's death. The estate had been taken over by the Court of Wards in the year 1895 in the lifetime of Raja Daulat Singh and the Court of Wards had continued to remain in charge of the estate during the lifetime of Raja Raghunath Singh.
2. On 26th October 1911, a few hours before his death the Raja made a will, and the main point for decision in this case is the interpretation of that will Ten or twelve days before his death, the Raja is said to have sent to the Collector his wishes as regards succession to the property after his death, but that writing is not forthcoming. On 26th October Pandit Lachmi Narain, the Assistant Manager of the Court of Wards, went to see the Raja in the morning and as he found him to be very ill, he suggested that the Raja should put down his wishes in writing. The Peshkar of the Court of Wards, Bhagwan Sahai, took down the wishes of the Raja, 'step by step', as they were disclosed to the Assistant Manager and to the other persons present there. The document was then signed by the Raja and was attested by a number of witnesses.
3. After the death of the Raja the Court of Wards continued to manage the property on behalf of the widow Rani Harbans Kishori. In the year 1916 the Rani, the 'plaintiff's mother expressed a desire to make an adoption, but the boy selected being the only son of his father the Court of Wards raised certain objections. In the year 1927 the Rani adopted the present defendant, Raghuraj Singh. He is the younger brother of the boy whom the Rani wanted to adopt in the year 1916. Some time after the adoption the Court of Wards issued fresh notifications to show that they were holding the estate thenceforward on behalf of Raghuraj Singh. On 20th February' 1932, the Rani made an application to the effect that she had heard that mutation of names in respect of the estate was going to be effected in favour of the adopted son and she prayed that her name may be allowed to remain till she was alive. She stated that the adopted son was a minor and was receiving education and that as soon as he had completed his education to her full satisfaction, she would herself make a report for mutation of names in his favour. This application was, however, rejected by the Board of Revenue on 15th March 1932, and the estate was after that date recorded in the name of the defendant, Raghuraj Singh, and the name of the Rani was expunged from the village records.
4. On 30th September 1987, Rani Harbana, Kishori executed a deed of gift giving the eight villages, known as taluqa Sikri, to her daughter, Raghubans Kumari, who had before that date become a widow. It is said that she has since then executed other documents transferring the rest of the estate to the son of Raghubans Kumari, but there is nothing on the record to show the nature of those transfers and they are not relevant for the purposes of this appeal. After the deed of gift in favour of the plaintiff, the plaintiff filed this suit for possession of the eight villages comprised in taluqa Sikri and for mesne profits from 30th September 1937, up to the date of delivery of possession.
5. In the plaint it is alleged that under the will dated 26th October 1911, Rani Harbans Kishori was given an absolute estate by Raja Raghunath Singh and she was, therefore, the full owner of the property and further that she continued to be the owner of the property even after the adoption made by her in the year 1927 and the Court of Wards had no right to get the property recorded in the name of the defendant. The Rani was, therefore, entitled to make the gift and the plaintiff had thus become the owner of the property.
6. On the date the suit was filed, the estate was still held by the Court of Wards on behalf of Raghuraj Singh, but during the pendency of the suit, the estate was released by the Court of Wards and the plaint was amended accordingly.
7. The defence was that the will was invalid as no previous permission of the Court of Wards had been taken before the execution of the will by the Raja, secondly, that the document did not give an absolute estate to Rani Harbaas Kishori, and lastly, that the Raja having given permission to his widow to make an adoption he could not make a bequest of his ancestral property in her favour so as to deprive the adopted son of the same when he was adopted.
8. The learned Civil Judge framed a number of issues and recorded evidence of the parties at great length. He came to the conclusion that the will did not confer an absolute estate on Rani Harbans Kishori and she had, therefore, no right to make a gift.
9. The plaintiff has filed this appeal, and Mr. Peare Lal Banerji, learned Counsel on behalf of the appellant, has urged only two points. The first point urged by him is that on a proper interpretation of the will it must be held that an absolute estate was conferred on Rani Harbans Kishori, and secondly that the decisions of the Madras High Court, to the effect that even in case an absolute estate is conferred by a document the widow is divested of the property, which after the adoption vests in the adopted son, do not lay down the correct law.
10. We have heard learned Counsel at great length and a large number of rulings on the interpretation of the will have been cited at the bar. It is not necessary to deal with those cases at great length.
11. Their Lordships of the Judicial Committee in Sasiman Chowdhurain v. Shib Narain Chowdhury 9 A.I.R. 1922 P.C. 63 at p. 32 observed that
it is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in' another case.
The primary duty of the Court in interpreting a Will is to ascertain' his intentions from the language used by the testator. To find out the intentions the Courts are entitled and are bound to bear in mind 'other matters' than merely the words used. The 'other matters', according to Lord Monlton, in Venkata Narasimha Appa Row v. Partha Sarathy Appa Row ('14) 41 I.A. 51 at p. 70 are
the surrounding circumstances, the position of the testator, his family relationships, the probability that the would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The Court is entitled to put itself into the testator's armchair.' Among such surrounding circumstances which the Court is bound to consider none would be more important than race and religious opinions, and the Court is bound to regard as presumably (and in many cases certainly) present to the mind of the testator influences and aims arising there from. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language, when used by that particular testator in that document.
12. In Mahomed Shumsool Hooda v. Shewukram ('76-77) 2 I.A. 7 their Lordships had said:
In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.
13. The view expressed in the above decision was followed in Radha Prosad Mullick v. Ranimoni Dassi ('08) 35 I.A. 118 and Bishun Singh v. Mangla Nain Bhagwan 32 .
14. It has, however, been made clear in the last case that the statement in Mahomed Shumsool Hooda v. Shewukram ('76-77) 2 I.A. 7 is no authority for the proposition that if the terms of the will give the woman an absolute right of disposition, those terms should be ignored. Their Lordships have also made it clear in several later decisions that it is not necessary that a right to transfer should be given in express terms, if from the language of the document it is clear that an absolute interest was intended to be conferred.
15. In a large number of cases their Lordships of the Judicial Committee have held that the word 'malik' means an absolute owner, and though their Lordships have taken pains to make it clear that it is not a word of art, yet it may be now accepted as settled law that where words like 'malik,' or other words which imply absolute ownership, are used in a document, then the document must be construed as conferring an absolute estate unless the implication of the use of those terms is cut down by other provisions in the document, it being the primary duty of the Court to ascertain the wishes of the testator from the document read as a whole. See the cases in Babidas Shivdas v. Bai Gulab 9 A.I.R. 1922 P.C. 193 at Sasiman Chowdhurain v. Shib Narain Chowdhury 9 A.I.R. 1922 P.C. 63, Jagmohan Singh v. Sri Nath at Bishun Singh v. Mangla Nain Bhagwan and Lalta Bakhsh Singh v. Phool Chand .
16. In the will the Raja first starts by saying that after his death the Rani shall be the owner (malik) of the estate and of all household goods and then he goes on to say that this practice or custom has prevailed in his family from of old (aur yahi rewaj mere khandan me kadim se chala ata hai). Then he goes on in the same paragraph to mention that 'it is also a custom that the Rani Saheba shall have the power to adopt a boy after his death.' In the second paragraph he mentions that if his daughter, gives birth to a son after her marriage the Rani Saheba shall have the power to give the Raj to him. In para. 6, however, the testator restricted the right to, adopt a boy, in case the Rani wanted to adopt one, from among the members of his family in the neighbouring villages mentioned in the will and if there was no suitable boy in those villages, then she was given the power to adopt a boy from Narwa in Gwalior State.
17. It is argued that as the Raja said in para. 1 that the Rani was to be the malik, it must be held that the Raja intended to make her the absolute owner. Barring this use of the word 'malik', there is nothing else which would indicate that the Raja intended to give her an absolute estate. Even in this paragraph there is a reference to some practice or custom prevailing from ancient times. If there was clear evidence that, according to the custom in this family, the widow becomes the absolute owner of the estate on the death of the last male owner without leaving any male issue, the answer to the question would have to be in favour of the plaintiff, that the Raja intended to make her the absolute owner. There is, however, no clear evidence of any such custom and from the statement of the Rani, Harbans Kishori Ju Deo, it appears that she does not know what was meant by this rewaj (custom). The only instance mentioned by her, when the estate went to a widow, was the case of the widow of Raja Bhup Singh. She had adopted Bakhat Bali Singh and on the adoption of the boy the property was, according to this witness, given to him. The custom or rewaj mentioned in this paragraph may have some reference to what the Raja has stated in para. 3 of the will which is in these words:
In my family,, there is no such near relation who may be entitled to get the Raj, that is, there is none in the family of my unole, Kalta (father's elder brother)' or grand-father. After me none but the Rani Saheba can have a claim to the Raj (aur bad ho hisi ha dawa sewai Rani Sahiba he raj pane ha nahi ho sakta.)
From this paragraph it appears that if there is no direct male descendant the widow is not entitled to get the estate in the presence of near relations like the uncle or grand-uncle?
18. That the widow does not get the estate immediately on the failure of a male descendant is partly borne out by the entries in the Wazibularzes. According to the wazibularz of Sikri (1864-65) the' Rani inherits the estate in the absence of a son, nephew, brother or an adopted son, and according to the wajibularz of Khaksis (1864-65) the widow gets the estate in the absence of a son or an adopted son if there is no younger brother of the deceased. I shall deal with these wajibularzes in detail later when I come to deal with the question of custom.
19. The Rajas of Sikri and Khaksis claim to be Surya Bansi Kachawa Rajputs and also claim relationship with the various ruling families of Surya Bansi Chattris. It is unusual in such families that the widow should be the absolute owner of the estate. Even in the will of the Raja his anxiety that the property should go to a male member of his family is clear. The Raja makes no provision for his daughter, who was his only surviving child, though he makes provision for his possible daughter's son who may be born to her later. As I read the will, the scheme appears to be that the Rani should, after the death of the Raja get the estate. If she makes an adoption, the adopted boy would no doubt be his successor. If she makes no adoption, she may give the property to his daughter's son. The Raja does not seem to have envisaged the possibility of the Rani neither adopting nor giving the property to the daughter's son. Prom the fact that he restricted even the adoption to be only from among the members of his family that is probably the Kachawa clan, it appears that he was anxious that the property should not go to a stranger. It, therefore, appears to me to be unlikely that the Raja should have ever intended that the Rani should have the absolute right to transfer the property to any one she liked and that the property should, after her death, go to her own relations. From the fact that the Rani was under no obligation to adopt it is clear that the predominant motive was secular and the Raja must have intended that the adopted boy would be a blood relation of his and would get the property after him.
20. Mr. Banerji on behalf of the appellant has urged that, according to the custom recorded in the wajib-ul-arz, the widow, when she inherited the estate, became the absolute owner of the property and that was the custom that the Raja was referring to in his will. On the death of Gajendra Bali, who had got the property after Man Bali, the eldest son of Bakht Bali, there was a litigation between Balwan Singh, son of Partab Singh, and Raja Daulat Singh, the younger brother of Gajendra Bali. Balwan Singh had pleaded that the estate should devolve on him inasmuch as he was the son of Partab Singh, the brother next in age to Gajendra Bali, while Daulafr' Singh claimed that as the younger brother of Gajendra Bali he was the nearer in degree and was entitled to the estate.
21. The wajib-ul-arzes of Sikri and Khaksia were produced by either 'party in support of its respective claim. The case was fought up to this Court, and it was held by a Bench on 25th January 1888, that these wajib-ul-arzes were not very reliable documents. It was alleged that these wajib-ul-arzes had been dictated by Raja Gajendra Bali, and this Court pointed out the variation between the two and the fact that the Raja had executed a tamliknama in favour of the respondent upon principles directly at variance with the custom described as the rule of succession to the estate in the wajib-ul-arz of Sikri, nine years after the year 1864. The rule of succession given in the wajib-ul-arz of Sikri is as follows:
After the death of the Raja the property should go to his son if he has one, and after the son to the eldest of his nephews. If there is no nephew, the brother and then the adopted son, but the Rani is to be the owner during the minority of the adopted son. If there be none of those mentioned above, then the Rani is to be the owner.
Mr. Banerji has relied on the word 'owner' (malik) in support of his argument that under this wajib-ul-arz the Rani, when she inherited the estate, became the absolute owner thereof. As pointed out, on the other hand, by Sir Wazir Hasan, for the respondent, that during the minority of the adopted son the Rani was to be the 'owner' and it could not be said that the word 'malik' there meant 'absolute owner.' This wajib-ul-arz is said to have been signed by one Nand Lal, Mukhtar, for Raja Gajendra Bali.
22. In the other wajib-ul-arz of Khaksis, the line of succession is the son or adopted son of the last male owner and in the absence of a son or an adopted son, the younger brothers, Partab Singh and Daulat Singh of Raja Gajendra Bali. The Raja is, however, said to have the right to nominate anyone of his brothers whom he liked as his successor. There is no mention made of the nephews or of the Rani. This wajib-ul-arz was signed by one Trinetra Singh on behalf of Raja Gajendra Bali.
23. It is not suggested that the rule of succession in the Sikri and the Khaksis Estates can be different. It must, therefore, be held that neither of the two wajib-ul-arzes can be said to be reliable, nor is it possible to hold on the strength thereof that any definite custom of succession is established.
24. Mr. Banerji has urged on the strength of Sri Braja Kisora Devu Garu v. Sri Kundana Devi Patta Mahadevi Garu ('99) 26 I.A. 66 and Venkata Surya Mahipati Rama Krishna v. Court of Wards ('99) 26 I.A. 83 that anything that conforms with the law of the land is not custom and it would be unnecessary to record the succession to the Rani in the wajib-ul-arz of Sikri unless the intention was that she should be the absolute owner. As a general proposition, there can be no doubt that custom is the practice which displaces the Common law, but, it does not necessarily follow from that that the entry in the wajib-ul-arz of village Sikri must necessarily be interpreted to mean that the Rani was to be an absolute owner and was to be a fresh-' stock of descent.
25. On the analogy of the Lakhna case, Naersing Rao v. Mahalakshmi Bai 15 A.I.R. 1928 P.C. 156, it has been argued that the predominating motive behind this will was the exclusion of Kunwar Satrughan Singh and Baldeo Singh, and this the Raja could only effectively do by making the Rani the absolute owner of the estate. In para 5 of the will it is mentioned that two persons, Kunwar Satrughan Singh and Baldeo Singh, should not be allowed to touch the dead body of the Raja nor should they join in 4th obsequies after his death. We do not know show these two were related to the Raja, but the fact remains that the Raja did not mention in this will that they were not to inherit his property. The only anxiety seems to have been that they should not touch his dead body or join in the funeral. It appears to me that that does not give any indication of the mind of the testator and it does*not necessarily follow from that that the Raja wanted to give his widow an absolute estate. I have already discussed the other clauses of the will and, to my mind, Raja Raghunath Singh did not give an absolute estate to his widow under his will dated 26th October 1911.
26. The result, therefore, is that, in my opinion, Rani Harbans Kishore got only a limited estate under the will dated 26th October 1911 and unless she was divested of the property on the adoption of the defendant, she could have executed the deed of gift to enure for her lifetime.
27. The Rani was alive on the date of the suit. She has now died and the question has, therefore, lost much of its importance, as the plaintiff's suit for possession must fail even if we come to the conclusion, in favour of Mr. Banerji, on the second point that the widow was not divested of the estate, received under the will, by the adoption of the defendant.
28. The point has, however, to be decided as the plaintiff may be entitled to claim mesne profits for the period till the Rani's death if the;gift in her favour was good for her lifetime. On this point, also, I am afraid, the decision must go against the plaintiff.
29. The second question argued by Mr. Banerji is that a widow is not divested of the property given to her by her husband under a will, if she makes an adoption under the authority given to her under that document.
30. The general proposition of law is that a person in whom the property is once vested cannot be divested of the same by reason of a subsequent event unless the estate taken was subject to such defeasance. In the case of a Hindu widow who gets property by inheritance from her husband, whether the property was the separate property of the husband or joint family property or impartible estate and whether the estate taken is an absolute estate as in Bombay, or a limited estate as in the rest of India, she is divested of the property as soon as she makes the adoption and the adopted son becomes the owner: see West and Bulher Hindu Law, Edn. 4 page 1014. So far as I know, this result has never been questioned. The reason may be this. An adopted son is, for all purposes, like a natural born son. It is, therefore, expected that, just as a widow who inherits property from her husband has to give it up in favour of her son in case a posthumous son is subsequently born to her husband, she must also give it up in favour of her adopted son as soon as an adoption has been made for she can get the property only in the absence of a son. If Raja Raghunath Singh' had left no will and the Rani had got the property by inheritance, there can no doubt that she would have been divested of the estate when she made the adoption.
31. It was at one time thought that this divesting was limited to the case of an adoption made by a widow who had inherited the property from her son or her husband and that if the estate had vested in any one other than the widow, the adoption itself was bad on the ground that the adopted son could not divest the estate taken by that other heir: see Mt. Bhoobnun Moyee Debia v. Ram Kishore (1863-66) 10 M.I.A. 279 (P.C.), Pudma Coomari Debi v. Court of Wards ('82) 8 I.A. 229, Thayammal v. Venkatarama Aiyar ('87) 14 I.A. 67 and Madana Mohana Ananga Bhima Deo v. Purushothama 5 A.I.R. 1918 P.C. 74.
32. The matter was considered by their Lordships of the Judicial Committee in Amarendra Man Singh v. Sanatan Singh . In that case the estate had vested in Raja Bibhudendra who died unmarried at the age of twenty years and six months on 10-12-1922. Under a custom prevailing in the family his mother, Rani Indumati, could not succeed to the property and the property was inherited by a collateral of the name of Banamali. On 18th December Rani Indumati adopted a boy called Amarendra, and the question was whether the adoption was or was not invalid. Their Lordships of the Judicial Committee after having carefully considered the origin of the custom of adoption and its implications in law came to the conclusion that the adoption was valid. They allowed the appeal and dismissed the suit of Banamali for possession of the property. Sir George Lowndes in the judgment of the Board pointed out that the right of the widow to make an adoption was not dependent on her inheriting as a Hindu female owner her husband's estate and held that
the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another coparcener of the joint family, or an outsider claiming by reverter, or, their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption.
The previous decisions of the Board were distinguished on the ground that in those cases the existence of the son's widow stood in the way of the adoption by the mother and in none of them was there any suggestion that the same rule would apply if the heir in whom the property had vested was some one other than her. The two propositions which, their Lordships held, were well settled, were, that 'where the son dies in infancy, or before attaining what is often referred to as 'ceremonial competence' leaving his mother as his heir, her power of adoption is still exercisable 'and that' the interposition of a grandson, or the son's widow, brings the mothers power of adoption to an end, but that the mere birth of a son does not do so.' These propositions were said to be based not on the question of vesting or divesting of property, but on the person that
where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone.
Their Lordships accepted the view that 'among Hindus the male line is not regarded as extinct, or a man to have died without issue until the continuation of the line by adoption is impossible' and they held that this view was supported by Lord Haldane's judgment in Madana Mohana Ananga Bhima Deo v. Purushothama 5 A.I.R. 1918 P.C. 74 and was in accordance with the view expressed by Mr. Ameer Ali in Pratap Singh v. Agarsingji Raisinghji 5 A.I.R. 1918 P.C. 192.
33. In Vijaysingji Chhatrasingji v. Shivasangji Bhimsangji the estate had been inherited by Chhatrasingji in the year 1899. He was adopted in another family in the year 1915. Soon after his adoption his mother adopted one Mansangji. After the adoption of Chhatrasingji the estate was claimed by one Bhimsangji who was the step-brother of Chandrasangji and who claimed that the adoption of Mansangji was invalid and that Chhatrasingji after his adoption out of the family had no right to remain in possession of the estate. Their Lordships of the Judicial Committee held that the adoption of Mansangji was valid as the power of adoption 'does not depend upon the question of vesting or divesting of the estate.' The natural son with his wife, having ceased to exist for the purpose of continuing the line the mother of Chhatrasingji was held to be entitled to make an adoption to secure that object. Their Lordships did not go into the question whether Chhatrasingji was divested of the property after his adoption, but on the ground that Mansangji was a nearer heir, the plaintiff's suit was dismissed.
34. The point whether the adopted son is entitled to recover possession of the property from a collateral in whom the property had vested arose directly inAnant Bhikappa v. Shankar Ramchandra . In that case the question arose not only with reference to joint family property but also separate property, and their Lordships decided in favour of the adopted son with reference to both kinds of property.
35. The facts of the case were that one Keshav, who was the last surviving member of a. joint Hindu family, died in the year 1917 unmarried. His father, Bhikappa, had died in the year 1905 leaving him and his mother, Gangabai, Bhikappa's widow. Under a custom governing succession to watan property, the property went to one Shankar, a somewhat remote collateral, Keshav had also inherited some property from his uncle, Narayan, who had separated from the joint family. In the year 1930 Mst. Gangabai adopted one Anant. Anant filed a suit in the year 1932 claiming the watan property as also the two plots from Shankar. The trial Judge-held in favour of the adoption and gave the-plaintiff a decree for possession with mesne profits from the date of the suit. On appeal the-High Court of Bombay set aside the order for possession and mesne profits and qualified the declaration, that he was the lawfully adopted son of Bhikappa and that as such he was the heir of the last male owner Keshav, by adding the words 'except as regard the watan property which has already vested in the defendant.' The High Court made no specific reference to the two plots which had belonged to Narayan and the order for possession and mesne profits was set aside without any exception being made as to these plots. The ground of the High Court's decision, as pointed out in the judgment of their Lordships of the Judicial Committee, was that
as the coparcenary which existed at the time of Bhikappa's death (1905) had come to an end on the death of Keshav (1917) and the family property had been vested in his heir; the subsequent adoption (1930) by Bhikappa's widow, though valid, would not revive the coparcenary or divest Keshav's heir, the adopting, widow not being herself Keshav's heir.
After having discussed at some length the various decisions of the Courts in India and of the Judicial Committee their Lordships came to the conclusion that Gangabai's power to adopt did not come to an end on the death of Keshav, the sole surviving coparcener in the joint family, and for that proposition they relied on Amarendra Man Singh v. Sanatan Singh , which I have already discussed above.
36. Having held that the adoption was valid, their Lordships then considered its effect upon the property which had belonged to the joint family. There could b*no doubt that an adopted son if adopted during the continuance of the joint family would be a member of the joint. Hindu family and would affect its constitution. The point for consideration was whether the joint family had really come to an end with the death of the last male owner, when there was a widow in the joint family who was capable of adopting a son, and their Lordships approved of the view of the High Court at Nagpur that the joint family could not be deemed to be at an end while there was still a potential mother, if that mother in the way of nature or in the way of law brought in a new male member : see Bajirao v. Ramkrishna 29 A.I.R. 1942 Nag. 19. On the acceptance of this fiction, no doubt as soon as a boy was adopted, he became a member of the joint family and the property came to him and any person who had got the property in the meantime merely by inheritance from the last surviving coparcener must be deemed to have got it subject to this chance of defeasance.
37. The question did not arise in that case whether, if the property had been transferred by the last male owner who had an absolute right to transfer it, being the sole surviving member of the joint family, the adopted son would have a right to challenge the transfer or claim the property from the transferee. As regards the property that Keshav had inherited from Narayan, and which was,' therefore, his separate property, their Lordships held that the same principles would apply as in the case of joint family property, and if the plaintiff's adoption as son to Bhikappa made him the nearest male in the line of heirs, his right to succeed could not be limited to the joint family property but also to the separate property which Keshav had inherited from Narayan. The principle on which their Lordships decided the case as regards joint family property was the continuance of the coparcenary. On what principle the same conclusion would follow in the case of separate property is not very clear. It cannot be said that the separate property which Keshav had inherited from Narayan was held by him subject to any rights in favour of any boy that may be adopted by any widow of any collateral of his, and the question who was his nearest heir must be determined on the date when Keshav died. Unless it can be urged that by a fiction the adopted son was in his adoptive mother's womb when her husband died and, therefore, every adoption must be deemed to date back to the date of the death of the husband of the woman making the adoption, it does not appear how the adoptive boy can divest the property from the hands of a person who was the nearest heir on the date of the death of the last male owner. Dealing with the question of gifts to a sentient person under the Hindu law of gifts in Juttendromohun Tagore v. Ganendromohun Tagore ('72) I.A. Sup. Vol. 47, at p. 67 their Lordships stated that:
By a rule generally adopted in jurisprudence this class would include children in embryo, who afterwards come into separate existence.
Proceeding further to the case of adopted children their Lordships held:
In contemplation of law such child is begotten by the father who adopts him, or for and on behalf of whom he is adopted. Such child may be provided for as a person whom the law recognises as in existence at the death of the testator, as if he had existed at the time of the testator's death having been actually begotten by him. Apart from this exceptional case, which serves to prove the rule, the law is plain that the donee must be a person in existence capable of taking at the time when the gift takes effect.
38. Again in Pratap Singh v. Agarsingji Raisinghji 5 A.I.R. 1918 P.C. 192, Mr. Ameer Ali dealing with the question of the heritable rights of the adopted son as compared to the rights of the Aurasa son, held:
It is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an Aurasa son and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made, there is no hiatus in the continuity of the line.
The same idea is to be found in the judgment of Viscount Haldane in Amarendra Man Singh v. Sanatan Singh .
39. Though, therefore, their Lordships have accepted the view that adoption works retrospectively and relates back to the death of the husband of the adoptive mother, it is very doubtful whether their Lordships intended that this fiction should be carried to its logical conclusion and the Courts should regard the adopted son in, all respects, i.e., for purposes of collateral succession also as a person in his mother's wombat the time of her husband's death so that on birth he becomes the owner of all such property as he would have got if he had been in existence at the time of his adoptive father's death.
40. A posthumous son must, in the course of nature, be born within two hundred and eighty days of his father's death, while there is no limit of time, except the life of the adoptive mother, within which the adoption can be made. Carrying the fiction of Hindu law to its logical con elusion is bound to create a great confusion and to unsettle many settled titles. The fact that their Lordships did not mean this result to follow is clear from this that their Lordships, even in Anant Bhikappa v. Shankar Ramchandra have reiterated the rule of law laid down in Bhubaneswari Devi v. Nilkomul Lahiri ('86) 12 I.A. 137 at p. 141 that 'an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral.' In Bhubaneswari Devi v. Nilkomul Lahiri ('86) 12 I.A. 137 on Rammohun's death his property came to his widow Chandmoni. She died on 15th June 1867. On that date Nilkomul, son of Kalimohun, being the nearest heir succeeded to the property. Kalimohun was a brother of Rammohun. In 1870, Rhubaneswari, widow of Shibnath, another brother of Rammbhun, who had died in 1861, adopted Jotindra Mohun Lahiri. The suit was filed on his behalf against Nilkomul' for a half share in the estate. The Board approving of the decision of the Calcutta High Court dismissed the suit mainly on the ground that as the adopted boy was not in existence at the time of the death of the widow of Rammohun, he could not get a share in the property held by her. It will be noted that had the adoption been held to have had retrospective effect from the time of the death of Shibnath, the plaintiff's suit for a half share would have been decreed.
41. This theory of retrospective effect of adoption made by a widow to the date of the death of her husband, if used for the purposes of collateral succession, would lead to many curious anomalies, e.g., if a man dies leaving a daughter or a sister, who is excluded from inheritance by family custom, his property would on his death go to his nearest heir. After the property had vested in them, if the daughter or the sister, not being a widow, gives birth to a son, or if her husband makes an adoption, the boy cannot divest the person in whom the property may have vested, as the right of the Aurasa son, or the adopted son, would come into existence on the date of his conception and birth or adoption. But if the adoption is made by a widowed daughter or sister, whose husband had predeceased the last male owner, then on the theory of the adoption; dating back to the date of the death of the adoptive father, the adopted son would divest the collateral in whom the property had vested. There seems to be no reason why inheritance should be left in doubt and jeopardy for an indefinite period and confusion should be created in settled titles. The decisions of their Lordships of the Judicial Committee however relate only to cases where property has gone by inheritance and not by transfer inter vivos or by bequest.
42. In Udhao Sambh v. Bhaskar Jaikrishna ('46) 33 A.I.R. 1946 Nag. 203 Bose J. refused to extend this principle to a case where the property had not been inherited from the last male member of a joint Hindu family but had been bequeathed by him by a will. In such a case he held that the decisions of their Lordships of the Judicial Committee quoted above did not apply and the son adopted by a widow of another coparcener could not deprive the legatees of the properties bequeathed to them.
43. It has been held in a number of cases that an alienation of coparcenary property by the sole surviving coparcener, valid when it was made, is binding upon a person adopted into the coparcenary after the date of the alienation. Their Lordships of the Judicial Committee have also held that where a Hindu disposes of his separate property by will and an adoption is made by his widow after his death, the disposition by will is not affected by the adoption, for the will speaks as at the death of the testator and the property is carried away before the adoption takes place: see Krishnamurthy Ayyar v. Krishnamurthy Ayyar . The question is whether this rule has an exception and whether in the case where the property is in the hands of the widow making the adoption she is divested of the property that she had got from her husband under his will.
44. To my mind, there is no such general exception in the case of a widow where she has got the property under the will of her husband. The rule of divesting a widow of property which she has inherited after she makes the adoption is based on a rule of law that the adopted boy, being the nearer heir, would have got the property if he had been in existence and the widow, when she adopts him, must be deemed to have done so with the object of making him the owner of the property. The same principle cannot apply in the case of property received by has either by transfer inter vivos or by bequest. In the case of property received by transfer or by bequest the decision must depend upon the interpretation of the document whether the transferor intended that the transferee or the legatee should continue to remain in possession of the property after the adoption.
45. Phillips Offg. C.J. in Sukhdevdoss Ramprasad v. Mt. Choti Bai : AIR1928Mad118 held that a widow who had got the property under a will of her husband which gave her an absolute estate was divested of the property by a subsequent adoption made by her. While conceding that, if the property had been given by the last male owner by a will to other people, they would not be divested by any adopted son subsequently adopted, he made an exception in the case of a widow on the ground that there was nothing to prevent a widow from divesting herself of her own free will and that by adopting a son the widow must be deemed to have realised that the adopted son should be placed in the position of a natural born son and should have all the rights of such a son. It is not clear whether the decision is based merely on the ground that the widow would be presumed, when making the adoption, to have agreed to divest herself. The comparison to a natural born son is not very appropriate as a natural born son must have been in his mother's womb at the time of the death of his father who would, therefore, not have an absolute right to make a will of ancestral property. The subsequent adoption however made after the death of the husband does not invalidate the will made by him : see Krishnamurthy Ayyar v. Krishnamurthy Ayyar . Reilly J. agreed with Phillips, Offg. C.J. that the widow having an absolute estate was at liberty to divest herself of it by a gift to her adopted son, but he was of the opinion that mere adoption of a boy did not cause an automatic divestment of the property.
46. In Erram Reddy Chenchu krishnamma v. N.R. Lakshminarayana : AIR1928Mad271 , Phillips J. slightly modified his previous view and based the divesting of an estate received by a widow by a bequest from her husband on the ground that the will must be interpreted by necessary implication to contain a provision that 'if an adoption is made by the widow, who is given a free choice, such adoption should be to the estate of the testator which was until then in the enjoyment of the widow.' According to the learned Judge, the widow had the option of either retaining the property or of making an adoption and thereby handing over the entire property to the adopted son. Srinivasa Aiyangar J. expressed himself in this way. According to him, the request to the widow 'should be regarded only as a provisional bequest subject to the exercise of the power to adopt given by the will.' In the earlier part of his judgment he laid down that
a widow adopting a Bon to her husband must be regarded, as by that act, having regard to the ordinary notions of Hindu law and Hindus, to have placed herself in the same position in which the parties would have been if the adopted son was a natural born son and the testator had died intestate in respect of part of the estate in her hands got by her husband.
47. I am sorry, with great respect to the learned Judges, I am not able to agree with their decision. As I have already said, I am prepared to accept that the question, whether after the adoption the widow should retain the property, must depend upon the interpretation of the will. Their Lordships of the Judicial Committee have now made it perfectly clear that no adoption can be challenged on the ground that the person making the adoption is not possessed of any property which the adopted son can get and that the validity of an adoption does not depend upon the question whether the adoptive mother or any one else can or cannot be divested of the property by the adopted son. The adoption is mainly on sacramental act and its validity would depend upon the observation of the various rules of Hindu law. The boy having been adopted, the question whether the adopted son would get the property in the hands of the widow or in the hands of the collaterals, which they have received by inheritance, would have to be decided in accordance with the principles laid down by their Lordships of the Judicial Committee in Anant's case already referred to, Anant Bhikappa v. Shankar Ramchandra , and the principles of Hindu law. In the case where the property has been transferred, the decision will depend upon the terms of the transfer. I can see no reason for presuming that a bequest of the estate to the widow should necessarily be regarded as a provisional bequest, subject to the exercise of the power to adopt given by the will.
48. In Jeevakore Bhai v. Krishnadoss Parmanandadoss ('32) 19 A.I.R. 1932 Mad. 680 Sundaram Chetty J. said:
The authority to adopt given by the testator to his widow under this will is not, in my opinion, inconsistent with the absolute disposition in favour on the widow. Even if the authority to adopt is conferred upon the widow, she can have an absolute estate in the property of the husband till she chooses to make the adoption, and once she exeroises that power she must necessarily be divested of her estate in favour of the adopted son.
I have already said that I do not, with great respect, agree with this view.
49. The matter was considered at some length by Mukerji and Guha JJ. in Basautakumar Basu v. Ramshankar Ray : AIR1932Cal600 and their Lordships were of the opinion that where the disposition was by will and the adoption was subsequently made by a widow who had been given power to adopt, no right of a son who was subsequently adopted could affect that portion which was already carried away under the will and held that as a result of the adoption Harakumari would not be divested of the estate which she had received under the will by reason of the fact that she had adopted plaintiff 1.
50. In Parashram v. Shriram Jackson and Subhedar A. J. Cs. held that an adoption made after the death of the testator could not oust the interest created under will as the testator at the time of his death had the full power over his property and was authorised to make such bequests as he liked.
51. To my mind, the question must, in each case, be decided on the language of the document and the wishes of the testator must be ascertained from it whether he intended that the widow should retain the property even after the adoption or that she should be divested of the same in favour of the adopted son. There is no question, so far as I can see, of the widow being put on her election or of there being a presumption in favour of the view that the testator must necessarily have intended that the widow should hold the estate only till she has made the adoption. I have already said that the decision must depend on the interpretation of the will. I can find nothing in the will of Raja Raghunath Singh which would indicate that his intention was that the Rani should remain in possession of the property even after the adoption. In the absence of any such direction or expression of intention, express or implied, the usual result, of the adopted son getting the property after his adoption should follow, specially as the Rani was given as I have held above, the same sort of limited interest as she would have got by inheritance. There is no force in this appeal, and I would dismiss it with costs.
Harish Chandra, J.
52. I agree with my learned brother that the appeal ought to be dismissed with costs, but for somewhat different reasons. My view is that the will executed by Raja Raghunath Singh in favour of his widow, Rani Harbans Kishori, conferred upon her an absolute right in the estate subject to the condition that she was to be divested of her estate in favour of the adopted son in the event of her making an adoption, for which the necessary authority was conferred upon her by the same will. As my learned brother points out,
it may be now accepted as settled law that where words like 'malik,' or other words which imply absolute ownership, are used in a document, then the document must be construed as conferring an absolute estate unless the implication of the use of those terms is cut down by other provisions in the document.
The implication of the word 'malik' used in the document has not, in my opinion, been cut down in this manner by the other provisions contained in it. The testator refers to some family custom and the evidence does not establish the fact that there was any existing custom in the family according to which a widow was in certain circumstances to get an absolute right in the estate. But the testator had an absolute right to dispose of his property in any manner he liked and the existence or non-existence of such a custom is quite immaterial. What we have to see is the real intention of the testator. When the testator refers in the will to the existence of a family custom, it seems to me that he must have had the wajib-ul-arzes of villages Sikri and Khaksis in mind. There had been some litigation in the family in regard to succession on the death of Gajendra Bali and in that case the wajib-ul-arzes of Sikri and Khaksis were produced by the parties in support of their respective claims. No doubt, in that case the wajib-ul-arzes were not relied upon and there can be no doubt that the entries in the two wajib-ul-arzesare not quite consistent. But whether these entries in the wajib-ul arzes are in fact correct and record an existing family custom in regard to succession or not, it seems clear to me that the plain meaning of the entries in para. 7 of the wajib-ul-arz of village Sikri is that, in the absence of a son, a nephew, a brother or an adopted son, the Rani is to be an absolute owner of the property. The word 'malik' has been used throughout to indicate ownership and there is no reason why I it should be given a different interpretation when applied to the Rani. At one place it is said' that if the male successor is a minor, the Rani shall be the 'malik' during his minority. The word 'malik' here also does not seem to have any different meaning from its meaning as used elsewhere in the wajib-ul-arz. There seems to be no inconsistency in interpreting the word as indicating that during the minority of the male successor to the estate, the Rani shall be the absolute owner of the property. A reference to para. 3 of the will further confirms the view that the real intention of the testator was that the Rani would be an absolute owner of the estate so long as no adoption was made by her. The paragraph is reproduced below.
3. In my family, there is no such near relation who may be entitled to get the Raj that is, there is none in the family of my uncle, kaka (father's elder brother) or grand-father. After me, none but the Rani Saheba can have a claim for the Raj.
It seems to me that the obvious intention of the testator was that the 'Rani Saheba' would have the same rights in the Raj as any of his near relations entitled to get the Raj would have had if he had been in existence and had succeeded to the estate after the death of the testator.
53. It is significant that the reference to the family custom of adoption is contained in the very first paragraph of the will in which the testator gives all his property to the Rani after his death as 'malik' and., in my view, indicates that the absolute ownership which he gave to the Rani was to be subject to the condition that she was to be divested of the property on an adoption being made by her. Paragraph 2 of the will presents a little difficulty. In this paragraph the testator says that if his daughter gives birth to a son after her marriage the Rani Saheba would be at liberty to give the Raj to him. It may be argued that para. 2 of the will suggests that the Rani had been given only a limited estate and that she had no power to give the estate to any person with the exception of her daughter's son to whom she was authorised to give it by the testator. In my view such an inference would not be justified. Paragraph 2 seems to be mere indication of a desire on the part of the testator that in case the Rani did not make an adoption she might give the estate to her daughter's son in case his daughter did give birth to a son after her marriage. But the language used by him gives full liberty to the Rani in the matter and does not, in my opinion, cut down the implication of the words used in paras, 1 and 3 of the will by which an absolute estate seems to have been given by the testator-to the Rani, subject, of course, to the condition implied by the language of para. 1 that she would be divested of the property in case she made an adoption. If the intention of the testator in fact was to give only a limited estate to the Rani clearer language was called for and, in my opinion, para. 2 of the will, as it stands, does not in any way affect the sense of paras. 1 and 3 of the will. No doubt the testator was at the time when the will was dictated by him, lying on his death bed and the language used in the will is naturally not well considered. But the general intention of the testator is, in my opinion, clearly deducible from it.
54. I agree with my learned brother that the Madras view that the general rule that where a Hindu disposes of his property by will and an adoption is made by his widow after his death, the disposition by will is not affected by the adoption, does not apply when the legatee happens to be the widow, is not correct. But, as already stated above, my view is that Rani Harbans Kishori was given an absolute estate by the testator subject to the condition that she would be divested of her estate on an adoption being made by her. After the adoption', there fore, the estate passed into the hands of the adopted son and Rani Harbans kishori had no power thereafter to execute a deed of gift giving eight villages in taluqa Sikri to the appellant. The appellant is, therefore, not entitled to possession of the property in suit and I would also dismiss the appeal with costs.
55. The result therefore is that this appeal is dismissed with costs.