1. For the decision of this appeal we have to consider a portion of the will of Rajah Suraneni Jagannatha Lakshma Row, Zeminder of Mailvaram who died on the 31st July 1859. We assume for the purpose of this judgment that the will is genuine, a point which is in dispute.
2. The important portion is the paragraph numbered I in the translation. It runs as follows:
We have no male issue; as a suitable boy could t not be found among the Jnaties no adoption has been made till now. If our wife Lakshmidevamma Rao, finds a suitable boy among our Jnaties she shall make our adoption according to her will and in accordance with the law. If no boy is found and if our daughter Venkata Chinnaya has a son that boy becomes ('or will become') a dauhitra karta ('daughter's son, heir') according to the law (Dharmasastras): so that bay alone should become the karta for the entire property belonging to us. According to the law the kartaship rests in our wife: so our funeral rites as well as the acts to be done subsequently should be caused to be done through our wife alone.
3. The plaintiff is the husband of the testator's daughter Venkata Chinnaya Row who died in 1902 after the death of her two sons. The defendants are sons of the testator's divided younger brother Venkata Gopala Narasimha Rao who died in 1851.
4. Mr. Seshagiri Aiyar on behalf of the appellant contended first that on a proper construction of the will the testator's daughter was appointed by her father to raise a son for him in accordance with a practice which is now generally reported to be obsolete. We need not determine whether in any event the language of the will could be made to bear this construction; it clearly could be so construed only if there were in existence a living custom to which the words can be referred. It is not such language as could be interpreted as indicating the testator's intention to revive a dead custom or create a new kind of heir for himself unknown to the law of the present day supposing him to have the power to do either of those things. It is clearly upon the plaintiff to prove the existence of the custom if he intends to rely on it vide Thakur Jeebnath Singh v. The Court of Wards (1875) 2 I.A. 163 and he has not taken any issue or otherwise raised the question before the Court of First Instance. It is a question which it may be impossible to decide without an elaborate investigation of the usages and practices of the Velama community, and it is, therefore, not a question which can properly be raised for the first time in the appellate court. In those circumstances, we have declined to hear argument upon the suggested construction of the will. Mr. Seshagiri Aiyar then contends that the will confers upon the widow a life estate with remainder to the son of her daughter Chinnaya Rao, or an estate defeasible on the birth of a son to that lady. The fatal obstacle to his success upon this ground is the fact that neither of the sons of Chinnaya Rao was born in the lifetime of the testator. We are asked to apply to the case the principle enacted in Section 100 of the Indian Succession Act, and transferred from that Act to the Hindu Wills Act, but that section as is pointed out by the learned authors of West and Buhler's Hindu Law contemplates a power of disposition of extending further in time than the Hindu Iyaw allows, as by that law some one in existence at the testator's own death must be the ultimate legatee (West and Buhler, 3rd edition, page 224). It is needless, we think, to cite authority in support of this statement of the Hindu Law and we find nothing against it in the judgment of Sir Subrahmanya Aiyar in Yethirajulu Naidu v. Mukuntha Natdu I.L.R. (1905) M. 363 to which our attention was invited. The Hindu Wills Act, assuming that it has altered the law in the case of wills to which it is applicable has, of course, no application to the present case.
5. The appeal is dismissed with costs.