Krishnaswami Ayyangar, J.
1. The plaintiff who is the appellant in this appeal is the adopted son of one Kondapaneni Appayya, the adoption having been made on 17th February, 1926, by Appayya himself during his lifetime. Some four years afterwards there was a partition of the family properties between Appayya and the appellant, and from that time onwards, each of the two sharers lived separately, enjoying the share allotted to him at the division. Appayya who thus came to be in exclusive possession of his share, was entitled to dispose of it in any manner he liked, by alienation during his lifetime or by will to take effect after his death. There is reason to believe that the state of feelings between him and his adopted son was far from cordial, though this is more a matter of inference from the fact of partition and the contents of his will, than of direct proof. It may accordingly be assumed that at the time when Appayya made his will which was on 22nd September, 1936 there was no love lost between the two and that he had made up his mind that no part of his share should be allowed to devolve on the appellant. It is common ground that Appayya died in the July following.
2. About the genuineness of the will and his testamentary capacity at the time there is no question. The only question for consideration in this appeal is whether by the provisions made by him in his will he has succeeded in arming his widow with a power sufficiently effective to exclude the appellant from the inheritance.
3. The material part of the will is as follows:
Now, I have got only my wife and no male or female issue. Only the adopted son is alive. About six years ago we became divided and since then we have been enjoying our respective shares separately. My wife alone is now doing service to me and attending to all my wants. Barring her, I have nobody else (to look after me). Therefore my wife, Lakshmamma, shall, after my death, take possession of all my properties in all the villages, movable and immovable, allotted to my share at the partition and enjoy their income without full rights of gift, sale, etc. She shall select a boy of her liking from among my gnatis and adopt him and that boy shall perform our obsequies, etc. (karma kanda) and the said adopted boy, from generation to generation (Putra Powtra Paramparyantham) shall enjoy only the income without rights of gift and sale. etc.
4. In pursuance of these directions the widow Lakshmamma (the second respondent) is alleged to have adopted the first respondent on 9th March, 1941. This allegation has been denied but there is no doubt that she did execute on that day a deed of adoption in his favour.
5. The suit out of which this appeal has arisen was instituted by the appellant on nth August, 1941, praying for a declaration that the alleged adoption of the first respondent is neither true in fact nor valid in law and that the same is therefore null and void. The defence of both the respondents was more or less the same, namely, that the widow had selected and adopted the first respondent and designated and constituted him as the heir to the estate in exercise of the power in that behalf contained in the will. It was accordingly maintained that by virtue of the will and the adoption deed the first respondent has become entitled as persona designaia to the entire estate of the late Appayya. If this is a good defence the suit would substantially fail of its purpose, because it is plain that the object of the plaintiff was not to get an empty declaration, but to establish his right to the estate after the lifetime of the widow.
6. On the 12 the September, 1941, the Subordinate Judge framed the following issues:
(1) Whether the adoption of the first defendant (first respondent) to late Kondapaneni Appayya is true in fact, valid in law and binding on the plaintiff.
(2) Whether the will executed by late Appayya dated 2nd September, 1936, is true and wag executed by him in a sound and disposing state of mind and if so, does it confer any valid authority on the second defendant to make a second adoption.
(3) Whether the plaintiff is not entitled to the declaration asked for.
(4) What relief is the plaintiff entitled to.
7. Answering issue 3 in favour of the defendants, the Subordinate Judge dismissed the suit without recording any finding on the other issues. Briefly stated, his conclusion is that in the events which have happened, the first defendant has become absolutely entitled to the estate so much so the grant of a declaration has ceased to be of any value to the plaintiff.
8. There are one or two preliminary matters which require to be dealt with before taking up the consideration of the main question involved in the appeal. It was first argued on behalf of the respondents that in view of the fact that the adoption of the first respondent while the first adopted son, namely, the appellant is alive is absolutely invalid, the Court below should have straightaway granted the declaration prayed for, in so far at any rate as the invalidity of the adoption quite apart from the factum is concerned, without going further to adjudicate on the rights created or sought to be created by the widow making the adoption. That of course depends on the questions raised by the issues and required to be decided. We have already referred to the nature of the defence put forward by the respondents in their written statements. They certainly invited the Court to dismiss the suit on the ground that the first respondent had in the events mentioned a title, which deprived the plaintiff of all locus, standi to maintain the suit. Further light is thrown on the matter by an application which the first respondent made in the Court below on 25th March, 1942, for an amendment of the issues. He desired to have added at the end of issue 2 the clause ' what is the estate given to defendants under the will?' He also wanted issues 3 to be recast as follows : 'In view of the will and the dispositions thereunder, whether the plaintiff has any locus standi to file this suit for declaration.' It is obvious to our mind that the purpose behind the application was to raise in a pointed form the question whether the first respondent became absolutely entitled to the estate after the termination of the prior life estate in favour of the widow, so as to cut out the appellant for ever. The purpose was fully achieved, for the learned Subordinate Judge ordered that the second issue did not need amplification or addition as suggested by the applicant, and the third issue as it stood really covered the matter sought to be raised by the proposed amendment. Having thus invited the Court to non-suit the plaintiff on a particular interpretation of the will and on the consequential rights created under it, it is not open to the same party now to say that all this was unnecessary and that the Subordinate Judge had gone off the track in pronouncing on rights so definitely put before him for adjudication. To allow such a contention to be raised would be to permit the respondent to trifle with the Court. We must hold that in the circumstances, the Subordinate Judge was warranted in deciding the question and we must now in the appeal consider the correctness of the decision.
9. The respondents' learned advocate also urged that the appeal should not be decided without his clients being given a fresh opportunity to adduce evidence to prove the surrounding circumstances which according to him are material to gather the true intention of the testator. But it is to be observed that the third issue which, as pointed out above, must be taken to cover the question raised and considered by the Subordinate Judge, was tried as a preliminary issue at the instance of the first respondent himself who did not then apparently want, and certainly did not offer, to produce, any oral evidence relevant to the issue. Having had the opportunity and having deliberately let it go, he cannot ask for it once again at this stage.
10. After all the proposed evidence is said to be for the purpose of showing (1) that the testator was greatly dissatisfied, with the conduct of the appellant after his adoption, and (2) that the testator was a person who believed in the necessity and efficacy of obsequial and other religious ceremonies. It seems to us that the first of these points is indicated with sufficient clearness in the will itself and as regards the second we think that the idea is to some extent suggested by the conduct of the testator in adopting the appellant himself in the first instance and in directing a second adoption to be made in order as expressly stated in the will, that the adopted son might perform his obsequies etc. It is, however, not to be forgotten that surrounding circumstances are material only in cases where the language of the instrument does not afford of itself a clue to the intention. That however is not the case here.
11. Now coming to the will itself, the first of the dispositions contained in it gives to the widow a life estate in all the properties left by the testator and there can be no doubt that to that extent the appellant has been effectively cut out. The second, which is the one most material, was in favour of the boy to be chosen from among the gnatis of the testator and adopted by the widow. Here the testator has indicated with sufficient clearness that the boy to be so adopted was to perform his obsequies and take the property, to be enjoyed from generation to generation but without rights of alienation. It is not necessary for us now to consider how far this restraint on alienation can be held valid. In fact, no arguments have been addressed to us on this point, and possibly the question may never arise as a live issue.
12. The only question for decision is what precisely was the intention of the testator when he directed that his widow should make a second adoption and adopt a boy to perform the ceremonies and enjoy the property. The appellant's contention is that the intention was not that his estate should go to a boy to be merely chosen out of the group of his gnatis unless also he can be and has been validly adopted by the widow. In other words, the widow was given a power to select an heir subject to two conditions (1) that the selection was from amongst the agnates and (2) that he should fill the character of a validly adopted son. The first has been fully satisfied as the boy adopted is among the gnatis of the testator. As regards the second it is conceded that the adoption is wholly void for the reason already mentioned and hence it becomes necessary to see wnether the testator has really made it a condition. After stating that the widow shall select a boy from among the gnatis and adopt him, the will proceeds,
that boy (meaning the boy adopted) shall perform the obsequies and the said adopted boy from generation to generation shall enjoy the income,
of the estate. Mr. Govindarajachari, the earned Counsel for the respondents, urges that the testator must be presumed to know the law that the second adoption while the son first adopted is alive is invalid and that he musf therefore be taken to have intended his estate to go to the boy with reference to whom a mere ceremony of adoption however ineffectual for the purpose, was gone through. In other words, the testator only wanted that the gnati to be chosen by his widow should go through a perfectly empty formality, empty to his knowledge and if that was done it was his intention that the boy so chosen should take the estate. It seems to us that such a presumption is not necessarily to be made in every case irrespective of the facts, but assuming it to be admissible, we still think it has been sufficiently rebutted in the present case because the testator has directed his widow not to observe a meaningless formality but to make the adoption and this he would not have done had he been aware of its invalidity. If, indeed, he had intended that the estate should go to the boy to be chosen by his widow irrespective of a valid adoption, he could easily have said so and indeed would never have inserted a direction that there should be an adoption, knowing fully well that it was but an empty formality. It is again suggested that the testator was only particular that the customary religious ceremonies for the benefit of his soul should be performed by somebody or other whether validly adopted or not. Here again the language of the document, as we read it, is clearly against the suggestion. It was not difficult for the testator to make it clear that what he wanted was the performance of ceremonies by somebody, not necessarily by a boy validly adopted. This he has not done. On the contrary the sequence of the several directions in this behalf as contained in the will is that a boy should be chosen from the groun indicated; that he should then be adopted; that on such adoption he should perform the ceremonies, and then at the proper time when it arrived he should take the estate. The use of the expression ' the said adopted boy ' very strongly suggests as indicated in some of the decided cases that he should fill that character, in order to entitle him to take the estate. The status of a validly adopted son was it seems to us made a pre-requisite to his taking, and it constituted in fact the motive and the condition of the bequest.
13. The contention of the respondents accepted by the Subordinate Judge is that the words ' the said adopted son ' in the will are merely descriptive, and should therefore be ignored, as errors of description by themselves do not affect the validity of the gift. The latter proposition is founded on a line of cases decided by the Privy Council, of which the earliest is Nidhoomoni Dabia v. Saroda Pershad Mookerjee . In that case the will contained the following passage:
And as I am desirous of adopting a son, I declare that I have adopted Koibullo Pershad, third son of my eldest brother Sardo Pershad. My wives shall perform the ceremonies according to the Shastras, and bring him up, and until that adopted son comes of age, those executors shall look after and superintend fell the property movable and immovable, in my own name or benami, left by me, also that adopted son. When he comes to maturity the executors shall make over everything to him to his satisfaction.
14. The Privy Council did not consider it necessary to decide whether the ceremonies referred to in the will were or were not necessary to confer the status of an adopted son on Koibullo or whether they had been duly performed as directed by the testator because in their opinion Koibullo took the estate as persona designate Their Lordships observed:
There is a gift of his property by the testator to a designated person. This direction follows ' my wives shall perform the ceremonies according to the Shastras, and bring him up.' Undoubtedly the testator desired and expected that the wives should perform certain ceremonies. He requested them to do so. But it appears to their Lordships that it would be an altogether erroneous reading of the will to suppose that he intended the taking of his property by Koibullo to be entirely dependent on whether the wives chose or did not choose to perform the ceremonies. If they did not, it may be that the adoption is not in all respects complete, although their Lordships by no means decide this, or give any opinion on the subject. Be that as it may, the gift of the property nevertheless takes effect.
15. In other words there was a gift to a named individual irrespective of his having been validly adopted, the adoption not being a condition of the gift. It is however necessary to distinguish between description and condition.
16. In Fanindra Deb Raiket v. Rajeswar Das (1885) L.R. 12 LA. 72 : I.L.R. 11 Cal.463 (P.C) the angikarpatro after reciting that the author Jogendra had received Rajeswar Das in adoption, contained the statement:
I authorise you by this angtkarpatro to offer oblations of water and pinda to me and my ancestors after my death by virtue of your being my adopted son. Moreover, you shall become the proprietor of all the movable and immovable properties which I own and which I may leave behind; you shall become entitled to my denapawna (debts and dues), and you and your sons and grandsons shall enjoy them agreeably to the custom of the family.
17. The Board held that the adoption, even if it had been made, was not valid as it was contrary to the customs of the family, and gave no right to inherit. The question then was whether Rajeswar took under the gift. Their Lordships observed:
He is to make the offerings by virtue of being an adopted son, and ' moreover,' he is to become the proprietor. This is to be the consequence of the adoption. In fact, the angikarpatro only states what would have happened without it. The distinction between what is description only, and what is the reason or motive of a gift or bequest, may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances.
18. On the grounds, namely, (1) that Jogendra's intention was to give his property to Rajeswar as his adopted son, capable of inheriting by virtue of the adoption, and (2) that the rule that it is not essential to the validity of a devise or bequest that all the particulars of the subject or object of the gift should be accurate was therefore not applicable, the Board held that the gift did not take effect. The crucial words in this case were ' by virtue of your being my adopted son,' and if he filled that character, then only he was to become the proprietor of the estate. This was held to have been indicated by the word ' moreover '. The language in the present case is not so express, but comes very near it, in view of the sequence in which the directions occur.
19. In Bireshwar Mukerjee v. Ardha Chandra Roy a ceremony of adoption had taken place, but the adoption was invalid as there had been no giving and taking. The will contained the clause,
Having no son, I loved and supported Ardha Chander Roy Chowdhuri, the youngest son of the late Radha Krishna Roy Chowdhuri, as my son. And as the said boy was very attached to me and my wife, and was an object of affection to us, I had a mind, granting to my daughters and daughters' sons a proper portion of my share of the ancestral property and self-acquired property, to give the remainder of the movable and immovable property to the said boy. Since then I have taken the said boy in adoption in virtue of the consent and gift of his father and mother, after getting the vyavasthas (opinions) of pundits, and on performing the ceremony of jag according to the Shastras.
20. Their Lordships upheld the gift observing,
Here is a clear indication of his intention, before making an adoption, to give the greater portion of his property to Ardha Chander. He did not select him as being an adopted son, but for reasons independent of adoption, though they were likely to lead to it.
21. Attention was drawn in this connection to the statement in the will ' If, through my, misfortune, the said boy die without leaving a son ' and emphasis was laid on the omission to describe him as 'said adopted son' or 'my adopted son.' It was ruled that the bequest was to Ardha Chander by name, and was not made dependent on the adoption. The Privy Council was apparently of the opinion that if such expressions had occurred the gift would have been conditional on the validity of the adoption. Here however we have the sentence ' she shall select a boy of her liking from among my gnatis and adopt him, and that boy shall perform-our obsequies, etc. (karma kanda) and the said adopted boy, from generation to generation (Putra Powtra Paramparyantham), shall enjoy only the income without rights of gift and sale, etc.' In the light of the observations of the Board, it is fair to conclude that the words ' that boy 'and' the said adopted boy ' import the condition that he must be validly adopted before the estate can pass to him.
22. In Surendra Keshab Roy v. Doorgasoondary Dasee the testator had by his will directed each of his two widows to make a simultaneous adoption and this was done with the result that neither was valid according to law. The will contained the following further provision:
The two adopted sons of both wives shall remain the shebaits of the whole of the movable and immovable property dedicated to Annapoorna Thakuranee aforesaid. They will carry out the supervision and the improvement of the said property. But they will do everything according to the advice of all the principal officers appointed by me. They will not be competent to make gift or sale of the different properties. Up to the time that the said two adopted sons do not attain their majority, my aforesaid two wives will exercise the care and control of all the said properties, and in carrying out these duties they shall take the advice of all the principal officers who have been appointed by me. They will not be competent to act otherwise. When the two adopted sons shall have attained their majority and shall have acquired sufficient knowledge for the preservation of the property, my two wives shall make over to them as shebaits, to their satisfaction, all the property dedicated to the Issur Debsheba.
23. The question was whether in spite of the invalidity of the adoption the gift took effect. Their Lordships answered No. The relevant observations are contained in the following passage of their judgment:
There is no gift to the adopted sons except in the character of shebaits. And it would require very strong and clear expressions jndeed to show that a Hindu gentleman contemplated introducing as shebaits of his family Thakoor two persons unknown to himself and strangers to his family. There is not a trace in this will to show any such intention, or to show that the testator doubted the legality of his scheme, or thought of any adoption but a legal one.
24. In Sri Raja Rao Venkata Surya Maharaja Ram Krishna Rao Bahadur Varu v. The Court of Wards (1898) 9 M.L.J. (Supp.) 1 the Zamindar of Pittapur who had made an adoption left a will in favour of a person who was described as his aurasa son in these words:
Though it is not specially necessary according to Hindu law that (property) should be passed to the aurasa son by means of a will, I have written this will to declare my opinion to all people that I have according to Hindu law passed the property to my aurasa son without (property) being disturbed. It is hereby settled that my entire property should go to my aurasa son Kumara Mahipathi Venkata Surya Rao.
25. It was assumed for the purpose of the decision that the donee was not the aurasa or natural son of the testator, but their Lordships upheld the bequest on the ground that it was only a case of false description, and did not vitiate the gift. In Subbarayar v. Subbammal the will provided as follows:
Whereas I possess the undermentioned immovable and movable properties, money, out-standings and debts, whereas I, having no issue, have been keeping Venkataramanayyar, a minor, aged about 10, son of Venkatadasappayya of Andan Kovil, Brahman, cultivator, who is my brother-in-law, as adopted son and protecting him for the last three years, whereas I am now seriously ill, whereas my mother Venkatalakshmi Ammal is in her dotage, and whereas my adopted son, the said Venkataramanayyar is a minor and consequently incapable of managing the said properties and of protecting us, my wife Subbammal shall, until the said minor becomes a major, administer the said properties as guardian of the said minor, discharge the debts, maintain the undermentioned chari. ties which I have been conducting, bring up the said minor, have his thread ceremony, marriage, etc., celebrated, maintain me and my mother Venkatalakshmi Ammal till our lifetime, and after our demise have our funerals, etc., performed for us by the said minor. Afterwards the said minor on his attaining majority shall take charge of the said properties, debts, etc., and until the lifetime of the said Subbammal he shall as per her orders look after the said properties and discharge the debts, also maintain the undermentioned charities and after the said Suhbammal's lifetime the shall perform her funeral, etc., and possess and enjoy with all rights the said properties, etc., from generation to generation.' The question was whether assuming that Venkataramanayyar had not been validly adopted he could take the property under the will. Their Lordships held that the gift to the minor was not conditional on adoption. Referring to the use of the words ' adopted boy ' in the will it was observed,
26. The testator no doubt refers to the minor as his adopted son, but he explains what is meant by that expression by stating that he had been keeping the minor 'as adopted son that is with a view to his adoption.' Several other decisions were also cited at the Bar, but we have not considered it necessary to refer to any of them as they do not carry the matter any further. It is to be observed that in all the cases noticed above except one, namely, Surendra Keshab Roy v. Doorgasoondary Dasee the gifts were to individuals designated and named in the relative instruments. In the last mentioned case, as in the appeal, before us, the gift was not to a named person but to one who was to be adopted at a future time. Whether or not the doctrine of persona designata is strictly applicable to such cases, there can be no doubt that the governing principle is the same, namely, whether the testator contemplated a valid adoption as a condition of the adoptee taking the gift, or whether he intended the gift to take effect irrespective of the adoption. In the former case the testator while directing an adoption to be made, intends that on such adoption being made the estate should devolve on the adopted son by inheritance. In the latter case alone does he intend a gift to take effect as such in favour of the donee specified. Where however the donee is left unascertained and has to be ascertained by a choice to be made at a future time by the widow, the case appears to be more akin to a power, such as was recognised by the Board in Bai Motivahu v. Bai Mamubai than to a gift. But here again the choice or designation to be good must follow the prescriptions of the testator, that is the person designated must satisfy all and every one of the conditions imposed by the testator or donor, such as for instance that he should validly fill the character of an adopted son. Otherwise the provision would fail.
27. Bearing these principles in mind we are of opinion that whatever the correct legal label to denote the direction, whether it is to be called a gift or a power, the decision should turn on the intention of the testator to be gathered from the language of the will. We have little doubt in the present case that the intention of Appayya was that his estate should go to a person chosen by his widow, and fulfilling both of two conditions (1) he should be a gnati; and (2) he should have been validly adopted. The second has admittedly not been satisfied. That being so, the first respondent whose adoption is invalid cannot take the estate.
27. The learned Subordinate Judge appears to be impressed by the statement contained in the will that the testator's wife alone was rendering all services to him in his last days, and that barring her there was no one in whom he was interested. He therefore considers that it is reasonable to conclude that the testator's intention was to exclude the plaintiff not only from the field of affection but also from the inheritance. We are inclined to agree with him to this extent that the testator was desirous of preventing the inheritance going to the plaintiff under the law. But unfortunately he proceeded upon the footing that a second adoption could be made by his widow after his death and made it the means of diverting the estate from the plaintiff to the boy to be adopted. In other words, he chose a wrong method of disinheriting the plaintiff, which has turned out to be ineffectual. That being so, the law must take its course and it vests the property in the plaintiff subject of course to the life estate created in favour of the widow.
28. In the result, the appeal is allowed and the suit decreed with costs throughout. There will be a decree for the plaintiff declaring that the adoption of the first defendant by the second defendant is void and inoperative and that the plaintiff is entitled to succeed to the properties left by Appayya after the termination of the life estate granted to the second defendant.